Nevada Reports 2000 (116 Nev.) PDF

116 Nev.
1, 1 (2000)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 116
____________
116 Nev. 1, 1 (2000) Mulder v. State
MICHAEL JOSEPH MULDER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32506
January 18, 2000 992 P.2d 845
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of first degree murder,
robbery upon a victim over the age of 65, and burglary while in possession of a firearm, and from a sentence of
death. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Defendant was convicted in the district court of first degree murder, robbery upon victim over the age of 65,
and burglary while in possession of a firearm, and was sentenced to death. Defendant appealed. The supreme
court held that: (1) indictment was not invalidated by presence of homicide detectives during grand jury
testimony; (2) trial court did not abuse its discretion in denying defendant's pretrial request to delay penalty
hearing by sixty days; (3) trial court did not abuse its discretion in determining that witness was not qualified to
testify as expert; (4) trial court improperly permitted such witness to give expert opinion testimony; (5) evidence
was sufficient to support convictions; (6) evidence was sufficient to support aggravating circumstances; and (7)
death sentence was neither excessive nor imposed under influence of passion, prejudice, or any arbitrary factor.
Affirmed.
[Rehearing denied March 1, 2000]
Philip J. Kohn, Special Public Defender, and Lee Elizabeth McMahon, Deputy Special Public Defender,
Clark County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland,
Chief Deputy District Attorney, and David Roger, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
Murder defendant waived challenge to indictment on ground that presence of two homicide detectives during one witness's grand
jury testimony was improper by failing to raise such issue before trial court. NRS 172.235(1).
2. Grand Jury.
Indictment charging defendant with murder was not invalidated by presence of two homicide detectives during one witness's grand
jury testimony, where grand jury had given detectives permission to be present. NRS 172.235(1)(g).
3. Criminal Law.
Granting or denying motion for a continuance is within sound discretion of district court.
4. Criminal Law.
Trial court did not abuse its discretion in denying capital murder defendant's pretrial request to delay penalty hearing by sixty days.
Applicable statute required hearing to be held as soon as practicable, continuance requested was not modest, need for delay was
occasioned by defendant's refusal to cooperate with his attorneys in preparation of mitigating evidence, and defense suffered no
prejudice from lack of continuance in that it was able to present testimony of three witnesses in mitigation and was not prevented from
presenting additional witnesses. NRS 175.552(1)(a).
5. Criminal Law.
Witness's testimony before grand jury was not hearsay and was properly admitted in murder prosecution, where witness testified at
trial and was subject to cross-examination.
6. Criminal Law.
Whether expert testimony will be admitted, as well as whether witness is qualified to be an expert, is within district court's
discretion, and reviewing court will not disturb that decision absent clear abuse of discretion.
7. Criminal Law.
Before witness may testify as to his or her expert opinion, district court must first determine that witness is qualified expert. NRS
50.275.
8. Criminal Law.
In determining whether witness is qualified to testify as expert, court should refrain from making comments which would demean
credibility and expertise of the witness. It is function of jury, not the court, to determine weight and credibility to give such testimony.
NRS 50.275.
9. Criminal Law.
In ruling on whether witness may testify as an expert, court must take care not to use terms such as qualified as an expert or
certified as an expert when referring to witness in presence of the jury, but should simply state that the witness may testify, or
sustain any objection to request to permit witness to testify as expert. NRS 50.275.
10. Criminal Law.
Trial court did not abuse its discretion in determining that witness proffered as expert in fingerprint comparison was not qualified
to testify as expert in fingerprint comparison, where witness's voir dire testimony revealed that he in fact had little, or at least
questionable, expertise in that area and that his expertise lay mostly in examining questioned documents, using skills such as
handwriting analysis. NRS 50.275.
11. Criminal Law.
Trial court improperly permitted witness, proffered as defense expert in fingerprint comparison but determined by court to lack
necessary qualifications to testify as expert, to offer fingerprint comparison testimony in murder prosecution, where such testimony
could not reasonably be categorized as lay opinion testimony. NRS 50.265, 50.275.
12. Criminal Law.
If witness fails to qualify as an expert, court should not permit the witness to testify unless witness may otherwise be considered a
lay witness. NRS 50.265, 50.275.
13. Criminal Law.
Trial court's erroneous receipt, in murder prosecution, of expert opinion testimony on fingerprint comparison from witness not
qualified as expert favored defendant, who had proffered witness, and was therefore harmless.
14. Criminal Law.
Prosecutor's voir dire of witness proffered by murder defendant as expert in fingerprint comparison was not misconduct, where
prosecutor's questions clearly concerned witness's qualifications.
15. Criminal Law.
Murder defendant's failure to object to prosecutor's comment, during closing argument in guilt phase, indicating that defendant's
witness on fingerprint comparison was not an expert, waived appellate review of such comment, as it was neither plain nor patently
prejudicial error.
16. Criminal Law.
To sustain conviction, sufficient evidence must exist that establishes guilt beyond reasonable doubt as determined by rational trier
of fact.
17. Criminal Law.
Trier of fact determines weight and credibility to give conflicting testimony, and on appeal reviewing court will not disturb verdict
which is supported by sufficient evidence.
18. Homicide.
Evidence of premeditation and deliberation is usually indirect, and circumstantial evidence may constitute sufficient evidence.
19. Homicide.
Evidence was sufficient for jury to reasonably find that defendant weighed consequences of killing victim, distinctly and rationally
formed design to kill, and did not act simply from rash unconsidered impulse, and thereby committed murder willfully, deliberately,
and with premeditation, as required to support conviction for first degree murder. Defendant told his girlfriend that he planned to
return to victim's home, victim's body was found hog-tied with duct tape on which defendant's fingerprints were
found,
victim's body was found hog-tied with duct tape on which defendant's fingerprints were found, victim died from severe impact trauma
to his head, and defendant told his girlfriend that he was involved in struggle with man he was robbing.
20. Robbery.
Evidence that defendant was seen with car, watch, and jewelry box stolen from murder victim, and that he told his girlfriend that
he had taken victim's gun, was sufficient to support conviction for robbery of victim over age 65, despite fact that defendant was not
found with the stolen items in his possession.
21. Robbery.
Evidence was sufficient to support finding that violence was used during commission of taking, whether taking occurred before or
after victim died of his injuries, as required to support robbery conviction. Victim was killed at some time during course of robbery by
severe blows to his head, defendant had stated intention to return to victim's residence in order to steal, and defendant subsequently
told his girlfriend that he had struggled with victim due to victim's lack of cooperation.
22. Burglary.
Evidence that defendant intended to return to victim's residence in order to steal was sufficient to support finding of his intent to
commit felony within victim's residence, as required to sustain conviction for burglary.
23. Burglary.
Defendant's admission to his girlfriend that he took victim's gun while in victim's residence, but later disposed of it, was sufficient
to support conviction for burglary while in possession of a firearm.
24. Criminal Law.
Relevant factors to consider in evaluating claim of cumulative error are: (1) whether issue of guilt is close, (2) quantity and
character of error, and (3) gravity of crime charged.
25. Homicide.
Evidence sufficient to support capital murder defendant's convictions for burglary and robbery was also sufficient to support
aggravating circumstances of commission of murder while committing burglary and commission of murder while committing robbery.
26. Homicide.
Testimony of bank teller who was robbed in 1986, police officer's testimony that defendant had turned himself in for bank robbery,
and judgment of conviction against defendant for bank robbery was sufficient to support aggravating circumstance, in capital murder
prosecution, of prior conviction for bank robbery.
27. Homicide.
Police officer's testimony that defendant had robbed two fast-food restaurant employees in 1980, that both victims identified
defendant as perpetrator, and that defendant had pleaded guilty to one count of armed robbery, together with judgment of conviction
against defendant for armed robbery, was sufficient to support aggravating circumstance, in capital murder prosecution, of prior
conviction for armed robbery.
28. Homicide.
Death sentence imposed upon first degree murder defendant was neither excessive nor imposed under influence of passion,
prejudice, or any arbitrary factor, where murder was particularly violent and gruesome and defendant had extensive and increasingly
violent criminal record, and where jury considered mitigating evidence including expert psychological testimony
and testimony of defendant's girlfriend.
where jury considered mitigating evidence including expert psychological testimony and testimony of defendant's girlfriend. Defendant
had previously been convicted, both as adult and as juvenile, of forgery, car theft, burglary, malicious mischief, theft, and trespass, had
had probation revoked and had violated parole. NRS 177.055(2).
Before the Court En Banc.
OPINION
Per Curiam:
In July 1996, an elderly man's severely beaten dead body was found in his home tied up with duct tape.
Appellant Michael Joseph Mulder was arrested and convicted of first degree murder, robbery upon a victim
over the age of 65, and burglary while in possession of a firearm. He was sentenced to death for the murder
conviction.
In his appeal, Mulder challenges the grand jury indictment, claims the district court should have
continued his penalty hearing, asserts that certain grand jury testimony should not have been admitted at
trial, argues that the district court should have certified his fingerprint witness as an expert, alleges
prosecutorial misconduct, and complains that the evidence was insufficient to support his conviction. We
conclude that none of Mulder's contentions have merit. Further, we have reviewed Mulder's death sentence
pursuant to NRS 177.055(2) and conclude that it was not improperly imposed. Accordingly, we affirm
Mulder's conviction and sentence of death.
FACTS
In July 1996, Mulder and his girlfriend, Kimberly Van Heusen, were visiting Las Vegas, Nevada, and
were staying at the 49er Motel, near the Showboat Casino. During this time, the couple consumed drugs, and
Van Heusen often prostituted herself to obtain money for drugs while Mulder sometimes worked day jobs on
construction sites.
On Sunday, July 7, 1996, Van Heusen was gambling at the Showboat Casino when she met
seventy-seven-year-old John Ahart in the early afternoon. The two drank, gambled, and spent time together
at the Showboat for about two hours. Ahart won $80.00, and they agreed to split the money. Van Heusen and
Ahart left the Showboat and went to a restaurant, an ATM machine, and a liquor store before finally arriving
at Ahart's home in a senior citizen mobile home park. There, they continued to drink and spend time together
until Ahart drove Van Heusen back to her motel in his maroon 1990 Infiniti coupe.
motel in his maroon 1990 Infiniti coupe. Because Ahart spent the money he won, he asked Van Heusen to return
the next day to receive the $40.00 he owed her.
On Monday, July 8, 1996, Mulder and Van Heusen took the bus to Ahart's home, arriving about 8 a.m. Ahart
let the couple in and gave Mulder a beer and Van Heusen her $40.00. While there, Mulder apparently looked
through Ahart's belongings. At some point, Mulder indicated to Van Heusen that he wanted to return to Ahart's
house to look around, which Van Heusen interpreted as Mulder's intention to steal from Ahart. After
approximately one-half hour, Ahart had to leave to do some errands. He gave Mulder and Van Heusen a ride in
his Infiniti, dropping Mulder off a short distance from Ahart's home so he could look for a job and dropping Van
Heusen off near her motel.
Approximately an hour and one-half later, Van Heusen was in the motel room when she heard loud honking
outside. Mulder was sitting in a maroon 1990 Infiniti coupe with the motor running, honking, and yelling for
Van Heusen to grab their stuff and hurry up. Mulder appeared upset and nervous and told Van Heusen that he
had stolen the car. Mulder's right hand was injured, and when Van Heusen asked him how that happened,
Mulder replied that he had been in a struggle. Van Heusen noticed that Mulder was wearing a new watch and
that a wooden jewelry box was in the back seat of the car. Mulder then drove with Van Heusen to Phoenix,
Arizona, where his family lived. Mulder later told Van Heusen that he had stolen a gun from the person with
whom he had struggled, but had disposed of the gun and had not used it.
On Thursday, July 11, 1996, Mulder and Van Heusen arrived in the Infiniti at the residence of Mulder's
sister, Lisa, who turned them away. They then drove to the house of Mulder's brother, Craig, who helped Mulder
and Van Heusen get a motel room. Craig asked Mulder where he got the Infiniti, and Mulder replied that it was
hot. When Craig noticed the injury to Mulder's hand, Mulder replied that he got hurt in a fight because the
other guy owed Van Heusen money and that he had injured his hand on the other guy's head.
Also on July 11, 1996, Jay Ahart, Ahart's son, arrived at Ahart's home after receiving a call from Ahart's
neighbor indicating that something was wrong. Jay entered the home through the back door and found his father
lying dead in a pool of blood on the dining/living room floor. Ahart's ankles were bound together and his wrists
were tied behind his back with duct tape. A chair had been placed over Ahart's body in an apparent attempt to
conceal it from view. Jay discovered that his father's gun, watch, jewelry box, and car were missing.
The medical examiner later testified at trial that when discovered,
ered, Ahart had already been dead for a few days and the body was partially decomposed. Ahart suffered a
crushed left cheekbone and several severe scalp lacerations, including a fifteen-inch hinge fracture from the front
of the skull extending around back to the base of the skull. The medical examiner also pointed out several
fragmentations and depressions around the skull and indicated there was hemorrhaging inside the scalp. The
dura mater, a membrane encasing the brain, was torn. Overall, the medical examiner testified that Ahart died
from massive head injuries due to severe impact trauma caused by multiple high-force blows from a blunt object.
The police found fingerprints in Ahart's home belonging to Van Heusen. Also, through a complicated method
involving ultraviolet light, the crime scene analysts were able to lift fingerprints off the duct tape used to bind
Ahart's ankles and wrists. The fingerprint expert in Las Vegas determined that those fingerprints did not belong
to either Ahart or Van Heusen, but he could neither include nor exclude Mulder as the person who left those
prints. After consulting his Las Vegas colleagues, who also could not accurately identify the fingerprints, the
fingerprint examiner sent the prints to the FBI fingerprint laboratory.
Robert Witt, the head of the FBI lab, testified as an expert witness that the lab was equipped to identify the
most difficult prints in the country and that much of his work was from local police departments whose own
experts have little experience in identifying such difficult prints. Witt, who had thirty-five years of fingerprint
comparison experience with the FBI, testified that without the use of sophisticated equipment he was able to
positively identify the prints from the duct tape as belonging to Mulder. His identification was verified by other
FBI fingerprint examiners.
Approximately two weeks after obtaining the Infiniti, Mulder somehow disposed of the car. A short time
after that, on August 16, 1996, a man (not Mulder) attempted to register the car in Phoenix. The automobile title
examiner verified that this was the same car that was stolen from Ahart, and when she attempted to delay the
man from leaving the office, he became nervous and left.
On September 9, 1996, Van Heusen spoke to her mother for the first time since July 1996. After her mother
gave her certain information,
1
Van Heusen became upset and asked Mulder if he killed Ahart on July 8, 1996.
Mulder expressed surprise that Ahart was dead and explained to Van Heusen that he had had to struggle with
Ahart because [Ahart] should have done what he was told.
__________

1
Because it was hearsay, Van Heusen did not testify as to exactly what her mother told her.
The Las Vegas police discovered that Mulder and Van Heusen were in Phoenix and arrested them on
September 12, 1996. After proceedings before a grand jury in Las Vegas, on October 11, 1996, the state filed an
indictment against Mulder for murder, robbery, and burglary. After a trial in February and March 1998, the jury
found Mulder guilty of one count each of first degree murder, robbery upon a victim over the age of 65, and
burglary while in possession of a firearm.
After the penalty phase, the jury determined that no mitigating factors outweighed the four aggravating
circumstances: that the murder was committed (1) while the person was engaged in the commission of or an
attempt to commit any burglary; (2) while the person was engaged in the commission of or an attempt to commit
any robbery; (3) by a person who was previously convicted of a felony involving the use or threat of violence to
the person of another, to wit: bank robbery in Arizona in 1987; and (4) by a person who was previously
convicted of a felony involving the use or threat of violence to the person of another, to wit: armed robbery in
Arizona in 1980. The special verdict form did not indicate what, if any, mitigating circumstances the jury found.
The jury returned a verdict for the death sentence. The district court sentenced Mulder to serve two consecutive
terms in prison of 48 to 180 months for robbery and a consecutive term of 40 to 180 months for burglary. This
appeal follows.
DISCUSSION
I. The presence of two homicide detectives during Van Heusen's grand jury testimony
[Headnote 1]
Because Van Heusen was reluctant to testify against Mulder, she was arrested as a material prosecution
witness. Pursuant to the prosecutor's request, the grand jury granted permission for two homicide detectives to
be present while Van Heusen testified in front of the grand jury. For the first time on appeal, Mulder challenges
the indictment, contending that the officers' presence intimidated Van Heusen while she testified against
Mulder. Specifically, Mulder claims that their presence violated NRS 172.235(1), limiting the people who may
be present during the grand jury proceedings.
[Headnote 2]
Mulder failed to raise this issue in the district court below, and therefore, we need not consider it. See
Walch v. State, 112 Nev. 25, 34, 909 P.2d 1184, 1189 (1996). We note, however, that no violation occurred.
NRS 172.235(1)(g) permits [a]ny other person requested by the grand jury to be present" at
grand jury proceedings.
son requested by the grand jury to be present at grand jury proceedings. The grand jury's permission for the
detectives' presence falls into this category. See Lujan v. State, 85 Nev. 16, 18-19, 449 P.2d 244, 245 (1969)
(holding that under former NRS 172.320, because the grand jury may request the presence of any person, the
grand jury's permission was sufficient and no violation occurred).
II. Mulder's pretrial motion to continue the penalty phase
On October 17, 1997, approximately four months prior to trial, Mulder's attorneys moved the district court
to bifurcate the guilt phase from the penalty phase. Specifically, counsel requested that any necessary penalty
hearing be held at least sixty days after the conclusion of the guilt phase. This request was based on Mulder's
apparent refusal to assist his counsel in obtaining mitigating evidence in preparation for a possible penalty
hearing. Therefore, counsel wanted the two-month delay so they could thoroughly investigate mitigating
evidence if Mulder was found guilty. On November 7, 1997, the district court denied the motion. Mulder now
contends the court's ruling was an abuse of discretion.
[Headnotes 3, 4]
NRS 175.552(1)(a) requires that in the event of a first degree murder verdict, the separate penalty phase be
conducted in front of the trial jury as soon as practicable. It is well settled that granting or denying a motion
for a continuance is within the sound discretion of the district court. Batson v. State, 113 Nev. 669, 674, 941
P.2d 478, 482 (1997). We conclude that the court did not abuse its discretion in denying Mulder's pretrial
request to delay the penalty hearing by sixty days.
In Lord v. State, 107 Nev. 28, 41, 806 P.2d 548, 556 (1991), after the defendant was found guilty of first
degree murder, he requested the district court to grant him a half-day continuance for the penalty phase to
permit his witnesses to travel to Nevada to testify. The district court denied the request, and the defendant was
prevented from presenting six of his seven witnesses, including his father.
On appeal, this court balanced the prejudice to the district court of a continuance against the prejudice to
the defendant of no continuance and concluded that the district court abused its discretion by refusing to grant
this reasonable request for a modest continuance. Id. at 42, 806 P.2d at 556-57 (emphasis added). This court
held that denying a reasonable continuance may be an abuse of discretion where the purpose of the motion is to
procure important witnesses and the delay is not the particular fault of counsel or the
parties."
important witnesses and the delay is not the particular fault of counsel or the parties. Id. at 42, 806 P.2d at 557.
First, in this case, the request was for sixty days, as opposed to a half day in Lord. Therefore, we conclude
that the request was not for a modest continuance. Second, the alleged need for the sixty-day delay was
entirely attributable to Mulder, who refused to assist his attorneys in preparation for a potential penalty hearing.
Accordingly, the delay [was] the particular fault of [Mulder]. See id. Third, although the purpose of Mulder's
motion to continue was to procure important mitigating evidence in the event of a penalty hearing, Mulder has
failed to explain exactly what mitigating evidence was not presented due to the court's refusal to continue the
penalty hearing. In fact, Mulder presented testimony of three witnesses who provided mitigating evidence and
was not prevented from presenting additional witnesses. Therefore, Mulder suffered no prejudice by the lack of a
continuance. Accordingly, we conclude that the district court did not abuse its discretion by denying Mulder's
motion to continue the penalty phase.
III. Admission of Van Heusen's grand jury testimony
During Van Heusen's testimony at trial, the prosecutor requested that Van Heusen read some of her grand
jury testimony to herself. Immediately afterward, the following exchange occurred:
[PROSECUTOR]: Okay. Do you recall what you told the grand jury regarding a conversation you
had with [Mulder] about his going back to the trailer?
Why don't you read what you said. Read my questions and the answers.
[VAN HEUSEN]: Okay. . . .
[DEFENSE COUNSEL]: I object to her reading the grand jury transcript.
THE COURT: You have to read it, Mr. Schwartz [the prosecutor]. Ask her if that's the answers.
Q. (By Mr. Schwartz) Prior tomy question I asked you prior to leaving Mr. Ahart's home did
[Mulder] say anything to you about coming back to the home[?]
[DEFENSE COUNSEL]: We would object to it as hearsay.
THE COURT: Overruled.
Q. (By Mr. Schwartz) What did he say?
Answer: He said that he's going to come back and look around and see if, you know, he can't get
some things.
What did that lead you to think he was going to do?
Answer: I thought he maybe wanted to go over there and steal something.
Was that your testimony before the Clark County Grand Jury? Was that your testimony at that time?
A. Yes.
[Headnote 5]
Mulder argues that the grand jury testimony was hearsay and the district court erroneously overruled his
objection without explanation. In his opening brief, Mulder points out that the refresh recollection exception,
NRS 50.125, did not apply because the prosecutor failed to establish the need to refresh Van Heusen's
recollection. He further contends that the grand jury testimony could not be admitted as a prior inconsistent
statement pursuant to NRS 51.035(2)(a) because the prosecutor failed to establish that the statement was
inconsistent with Van Heusen's trial testimony.
We note, however, that [a] transcript of testimony given under oath at a trial or hearing or before a grand
jury is not considered hearsay if the declarant testifies at trial and is subject to cross-examination. NRS
51.035(2)(d) (emphasis added); see also California v. Green, 399 U.S. 149, 159 (1970) ([T]he inability to
cross-examine the witness at the time he made his prior statement cannot easily be shown to be of crucial
significance as long as the defendant is assured of full and effective cross-examination at the time of trial.);
Maginnis v. State, 93 Nev. 173, 175-76, 561 P.2d 922, 923 (1977) (concluding that admission of a witness's
grand jury testimony was not error). Here, Van Heusen testified at trial and was subject to cross-examination.
Accordingly, admission of her grand jury testimony was not hearsay and was therefore properly admitted.
IV. Testimony of Mulder's witness on fingerprint comparison
To rebut the state's evidence that Mulder's fingerprints were found on the duct tape used to restrain Ahart,
Mulder presented as a witness Howard Doulder, an alleged expert in fingerprint comparison. As his
credentials, Doulder testified that in 1947 he joined the Milwaukee Police Department and was trained in
analyzing fingerprints. From 1955 through 1973, he worked as the United States Treasury Department's
laboratory supervisor. He explained that he reviewed what is known as questioned documents and to a lesser
degree fingerprints for many of the United States agencies, such as the Internal Revenue Service, Alcohol,
Tobacco and Firearms, Immigration and Naturalization Service, Secret Service, and Customs.
Secret Service, and Customs. Eventually, Doulder moved to Orange County, California, and then to Las Vegas,
Nevada, where he worked as a private consultant examining questioned documents and to a lesser extent
fingerprints. He claimed that he had testified in Nevada as an expert on many occasions, but only a small
percentage of his testimony regarded fingerprints. Additionally, he testified that he was an active life member of
the International Association for Identification (IAI).
During the prosecutor's voir dire examination, Doulder revealed that the IAI listed him as an expert in
questioned documents, not fingerprints. Doulder was listed as an IAI fingerprint expert in 1950; although he is
no longer listed, he testified, Fingerprints haven't changed from 1950 to now. They are the same. Additionally,
the prosecutor elicited testimony that although Doulder had testified about fingerprinting in recent trials in Las
Vegas, the presiding judges in those trials refused to determine that he was a qualified fingerprint expert.
Doulder admitted that ninety percent of his work is in questioned documents and only ten percent deals with
fingerprints.
Even before the prosecutor finished his voir dire examination, the district court ruled that Doulder was not a
qualified expert in fingerprint comparison, but would nevertheless be permitted to testify. Doulder then testified
that he compared the fingerprints found on the duct tape with Mulder's known prints and was unable to find
enough points of comparison to identify the prints as belonging to Mulder. Doulder, however, did not conclude
that the prints were conclusively not Mulder's.
On appeal, Mulder argues that although Doulder testified about the fingerprints, the district court erred by
refusing to recognize Doulder as an expert. Mulder's argument emphasizes that the evidence that Mulder's
fingerprints matched those on the duct tape was key evidence in connecting Mulder to this crime. He asserts that
had the court determined that Doulder was a qualified expert, his testimony could have induced reasonable
doubt in the minds of the jurors.
NRS 50.275 provides: If scientific, technical or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert by special knowledge,
skill, experience, training or education may testify to matters within the scope of such knowledge. (Emphasis
added.)
[Headnote 6]
Whether expert testimony will be admitted, as well as whether a witness is qualified to be an expert, is within
the district court's discretion, and this court will not disturb that decision absent a clear abuse of
discretion.
clear abuse of discretion. See Smith v. State, 100 Nev. 570, 572, 688 P.2d 326, 327 (1984); Childers v. State,
100 Nev. 280, 283, 680 P.2d 598, 600 (1984). This court has reasoned that:
The district court is better suited to rule on the qualifications of persons presented as expert witnesses
and we will not substitute our evaluation of a witness's credentials for that of the district court absent a
showing of clear error.
Hanneman v. Downer, 110 Nev. 167, 179, 871 P.2d 279, 287 (1994).
[Headnotes 7-9]
Clearly, before a witness may testify as to his or her expert opinion, the district court must first determine
that the witness is indeed a qualified expert. See, e.g., Fernandez v. Admirand, 108 Nev. 963, 969, 843 P.2d 354,
358 (1992) (stating that once a witness is qualified as an expert, he or she may testify to all matters within his or
her experience or training); Houston Exploration v. Meredith, 102 Nev. 510, 513, 728 P.2d 437, 439 (1986)
(indicating that the proffered expert testimony may be admitted only after the witness is qualified as an expert).
When making this decision, the court should refrain from making comments which would demean the credibility
and expertise of the witness. See Wickliffe v. Sunrise Hospital, 104 Nev. 777, 780, 766 P.2d 1322, 1324 (1988).
It is a function of the jury, not the court, to determine the weight and credibility to give such testimony. Bolin v.
State, 114 Nev. 503, 525-26, 960 P.2d 784, 799 (1998), cert. denied, 525 U.S. 1179, 119 S. Ct. 1117 (1999).
2

[Headnotes 10, 11]
In the present matter, we first conclude that the district court did not abuse its discretion by determining that
Doulder was not a qualified expert in fingerprint comparison. The court heard the voir dire examination by the
prosecutor and was in the best position to determine whether Doulder's credentials qualified him as an expert on
this subject. Doulder's voir dire testimony revealed that he in fact had little, or at least questionable, expertise in
that area; rather, it appears that his expertise lay mostly in examining questioned documents, using skills such as
handwriting analysis. While the court did not err by failing to qualify Doulder as an expert, it did, however, err
by permitting him to testify.
__________

2
In ruling on whether or not a witness may testify as an expert, the court must take care not to use terms such
as qualified as an expert or certified as an expert when referring to the witness in the presence of the jury.
The court should simply state that the witness may testify, or sustain any objection to a request to permit the
witness to testify as an expert. This will prevent potential prejudice by either demeaning or promoting the
credibility of the witness.
Although NRS 50.265 permits the presentation of lay opinion testimony, it is clear in this case that the court
permitted Doulder to testify as if he were an expert even after the court concluded he was not an expert. If the
court believed that Doulder was an expert, then it demeaned his credibility and expertise by announcing in front
of the jury that Doulder was not an expert. See Wickliffe, 104 Nev. at 780, 766 P.2d at 1324. If, however, the
court did not believe that Doulder was an expert, then the crucial requirement of being a qualified expert was not
fulfilled, and therefore, Doulder should not have testified at all. See NRS 50.275. In this case, the court
specifically concluded that Doulder was not an expert; accordingly, the court erred by permitting him to testify
as to his expert opinion.
[Headnotes 12, 13]
We hold that if a witness fails to qualify as an expert, the court should not permit the witness to testify unless
the witness may otherwise be considered a lay witness. Here, Doulder was not a lay witness and should not have
been permitted to testify. The error here was clearly harmless as it favored the defense; reversal is not warranted.
V. Prosecutorial misconduct regarding Mulder's witness on fingerprint comparison
[Headnote 14]
Mulder argues that the prosecutor committed misconduct by disparaging Doulder during voir dire
examination and closing arguments. Mulder first argues that the prosecutor conducted an improper voir dire .
. . despite the lengthy and material qualifications of [Doulder]. Mulder contends that the prosecutor
ambushed Doulder during the voir dire examination and should have shown restraint. After reviewing the
voir dire testimony, we conclude that the state's voir dire examination was proper.
The prosecutor's questions clearly concerned Doulder's qualifications, serving the very purpose of voir dire
examination of an alleged expert witness. We conclude that a district court should hear such information before
deciding whether to qualify someone as an expert. Mulder appears to argue that just because he presented
Doulder as an expert and because Doulder has some qualifications relating to fingerprints, the court should have
automatically qualified him as a fingerprint expert and dispensed with any voir dire examination. As discussed
above, the court did not abuse its discretion by refusing to determine that Doulder was a qualified expert.
[Headnote 15]
Mulder next argues that the prosecutor committed misconduct during closing arguments of the guilt
phase by stating:
during closing arguments of the guilt phase by stating: We have had experts, two experts testify at this trial with
all due respect and Judge Pavlikowski agreed Dr. Doulder was no expert. Mulder failed to object to this
comment, and we will therefore not consider this argument because it is neither plain nor patently prejudicial
error. See Hewitt v. State, 113 Nev. 387, 392, 936 P.2d 330, 333 (1997).
VI. Sufficiency of the evidence
[Headnotes 16, 17]
To sustain a conviction, sufficient evidence must exist that establishes guilt beyond a reasonable doubt as
determined by a rational trier of fact. Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980). The trier of
fact determines the weight and credibility to give conflicting testimony, and on appeal this court will not disturb
a verdict which is supported by sufficient evidence. Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981). We
conclude sufficient evidence supports Mulder's conviction for first degree murder, robbery upon a victim over
65 years of age, and burglary while in possession of a firearm.
First degree murder
[Headnotes 18, 19]
Mulder argues that the evidence presented failed to demonstrate that he committed Ahart's murder willfully,
deliberately, and with premeditation. Evidence of premeditation and deliberation is usually indirect, and
circumstantial evidence may constitute sufficient evidence. Briano v. State, 94 Nev. 422, 425, 581 P.2d 5, 7
(1978). We conclude that the evidence was sufficient for the jury to reasonably find that Mulder weighed the
consequences of killing Ahart, distinctly and rationally formed a design to kill, and did not act simply from a
rash unconsidered impulse.
Mulder indicated to Van Heusen that he planned on returning to Ahart's home. Ahart's dead body was found
hog-tied, and Mulder's fingerprints were found on the duct tape used to tie Ahart. The medical examiner
testified that Ahart probably died around July 8, 1996, the day Mulder went back to Ahart's house, and that
Ahart died from severe impact trauma to his head. Mulder made statements that he was involved in a struggle
with a man he was robbing, and Mulder told Van Heusen that Ahart should have done what he was told.
Mulder was seen with the items stolen from Ahart, and Mulder was very anxious to leave town right after
returning from Ahart's house.
Robbery upon a victim over the age of 65
[Headnote 20]
Mulder claims that because he was not found with the stolen items in his possession, there was unreliable
evidence that he robbed Ahart. We conclude there was sufficient evidence that he possessed the items. Much
testimony was presented that other people saw Mulder with Ahart's car, watch, and jewelry box, and Van
Heusen testified that Mulder told her that he also took Ahart's gun.
[Headnote 21]
Mulder further claims that the state failed to prove that Ahart was alive when Mulder committed the taking.
He argues therefore that because violence is a requirement for robbery, there was insufficient evidence to
convict him of robbery. We conclude this argument is patently without merit. Ahart suffered from severe blows
to the head, resulting in his death. We conclude that violence was indeed used during the commission of the
taking, whether the taking occurred before or after Ahart succumbed to his injuries. See NRS 200.380(1)
(defining robbery in part as the unlawful taking . . . by means of force or violence).
We also note that evidence was presented that Mulder intended to return to Ahart's residence in order to steal
and that he struggled with Ahart due to Ahart's lack of cooperation. Accordingly, we conclude sufficient
evidence exists to support Mulder's conviction for robbery.
Burglary while in possession of a firearm
[Headnotes 22, 23]
Mulder alleges that the state failed to prove that he had the requisite intent to commit a felony when he
entered Ahart's home. We conclude this argument has no merit. Again, evidence was presented that Mulder
intended to return to Ahart's residence to steal. Mulder further argues that there was no evidence to verify that
there was a gun of which Mulder took possession in Ahart's home. However, Mulder's own admissions,
presented through Van Heusen's testimony, belie this claim. Mulder told Van Heusen that he took the gun, but
later disposed of it because he knew it would upset Van Heusen. Accordingly, we conclude sufficient evidence
supports Mulder's conviction of burglary while in possession of a firearm.
VII. Cumulative error
[Headnote 24]
Mulder contends that the cumulative effect of the previously discussed alleged errors denied him a fair trial.
See Big Pond v. State, 101 Nev. 1
State, 101 Nev. 1, 692 P.2d 1288 (1985). Relevant factors to consider in evaluating a claim of cumulative error
are (1) whether the issue of guilt is close, (2) the quantity and character of the error, and (3) the gravity of the
crime charged. Leonard v. State, 114 Nev. 1196, 1216, 969 P.2d 288, 301 (1998). In this case, we conclude
Mulder has failed to demonstrate any error detrimental to him.
VIII. This court's mandatory review pursuant to NRS 177.055(2)
NRS 177.055(2) requires this court to determine whether the evidence supports the aggravating
circumstances, whether the verdict of death was imposed under the influence of passion, prejudice, or any
arbitrary factor, and whether the death sentence is excessive considering this defendant and this crime.
[Headnote 25]
First, we conclude that sufficient evidence exists to support the aggravating circumstances: (1) Mulder
committed the murder while committing a burglary; (2) Mulder committed the murder while committing a
robbery; (3) Mulder was previously convicted of bank robbery in Arizona in 1987; and (4) Mulder was
previously convicted of armed robbery in Arizona in 1980. The jury already determined beyond a reasonable
doubt that Mulder committed both the burglary and the robbery, and as discussed above, sufficient evidence
supports those convictions.
[Headnote 26]
In support of the 1987 bank robbery conviction, the state presented the testimony of the bank teller who was
robbed on October 20, 1986. She, however, did not identify Mulder as the assailant. An Arizona police officer
testified that on December 15, 1986, Mulder turned himself in for the bank robbery. Mulder's April 13, 1987
judgment of conviction for bank robbery was admitted into evidence; Mulder had been sentenced to serve seven
years in federal prison.
[Headnote 27]
In support of the 1980 armed robbery conviction, the state presented the testimony of another Arizona police
officer who testified that on March 15, 1980, Mulder robbed a sixteen-year-old cashier at a Taco Bell and on
April 21, 1980, Mulder robbed an employee of Church's Chicken. The officer testified that both victims had
identified Mulder as the perpetrator and Mulder eventually pleaded guilty to one count of armed robbery.
Mulder's July 17, 1980 judgment of conviction for armed robbery was admitted into evidence; Mulder had been
sentenced to serve seven years in prison.
prison. We conclude that sufficient evidence exists to support the aggravating factors.
[Headnote 28]
Next, we conclude that the death sentence is neither excessive nor imposed under the influence of passion,
prejudice, or any arbitrary factor. The state presented evidence of Mulder's many other prior convictions, both as
an adult and as a juvenile, for forgery, car theft, burglary, malicious mischief, theft, and trespass. Mulder also
had his probation revoked and has violated parole. The state also presented victim impact testimony from Ahart's
nephew and son (who had found Ahart's body). The jury also considered the facts of this crime, presented during
the guilt phase.
In mitigation, Mulder presented the rather compelling testimony of a psychologist, Van Heusen, and a priest.
The psychologist testified as to Mulder's history of drug use, bad childhood, fragile self-concept and low
self-esteem, and impulse control disorder. Van Heusen, who specifically requested to testify on Mulder's behalf
in the penalty phase, testified that Mulder was generally nonviolent and was a good person who wanted to do the
right thing. She explained that she loved him very much and that he was the father of her child. The priest, who
had known Mulder for approximately nine years, testified that Mulder was a gentle and sensitive person and a
good friend. Additionally, Mulder presented testimony that despite his strenuous efforts, his family refused to
support him or help challenge the death penalty.
In this case, Mulder committed a particularly violent and gruesome crime by tying up and then beating an
elderly man to death. Mulder has an extensive criminal record, and over time, he appeared to commit crimes
increasing in violence, culminating in this murder. We conclude that considering this crime and Mulder's
background, the death sentence is not excessive, nor was it imposed pursuant to any inappropriate factor.
CONCLUSION
We conclude that none of Mulder's issues require reversal. We further conclude that the death sentence is
not inappropriate pursuant to NRS 177.055(2). Accordingly, we affirm Mulder's conviction and sentence of
death.
____________
116 Nev. 19, 19 (2000) Morales v. State
CRISTOBAL MORALES, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 30717
January 26, 2000 992 P.2d 252
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of trafficking in a controlled
substance. Eighth Judicial District Court, Clark County; Gene T. Porter, Judge.
Defendant was convicted in the district court of one count of trafficking in a controlled substance, and he
appealed. The supreme court held that: (1) defendant is entitled to eight peremptory challenges whenever life
sentence may be imposed; overruling Nootenboom v. State, 82 Nev. 329, 418 P.2d 490 (1966); (2) failure to
allow defendant eight peremptory challenges, rather than four, constituted reversible error; and (3) defendant's
conviction was supported by evidence.
Reversed and remanded for a new trial.
Morgan D. Harris, Public Defender, and Craig F. Jorgenson, Deputy Public Defender, Clark County, for
Appellant.
Chief Deputy District Attorney, and Gregory D. Knapp, Deputy District Attorney, Clark County, for
Respondent.
1. Criminal Law; Jury.
Failure to allow defendant charged with trafficking in a controlled substance of 28 grams or more eight peremptory challenges,
rather than four, constituted reversible error, where, at time of trial, offense was felony punishable by imprisonment for either life or
definite term of not less than twenty-five years. NRS 175.051, 453.3385(3).
2. Jury.
A criminal defendant is entitled to eight peremptory challenges whenever a life sentence may be imposed upon conviction of the
offense; overruling Nootenboom v. State, 82 Nev. 329, 418 P.2d 490 (1966). NRS 175.051.
3. Criminal Law.
Defendant actions in breaking into defense counsel's office on night before trial to search for document that would allegedly
exonerate him did not entitle defendant to continuance for competency evaluation, where there was no indication that defendant was
unable to remember events relating to his arrest, communicate with his attorney, or otherwise assist in his own defense. NRS 178.405.
4. Criminal Law.
A criminal defendant may not be tried while incompetent.
5. Criminal Law.
Incompetency exists when a criminal defendant is unable to assist his counsel in his defense. NRS 178.400.
6. Mental Health.
Where there is reasonable doubt regarding a defendant's competency, a district court's failure to order a competency evaluation
constitutes an abuse of discretion and a denial of due process.
7. Drugs and Narcotics.
Defendant's conviction for trafficking in a controlled substance of 28 grams or more was supported by evidence that cocaine
seized from defendant at time of his arrest weighed 28.3 grams at time of arrest, and by expert testimony of criminalist that loss of
weight of cocaine in two years between arrest and trial could be attributed to moisture loss, transferring of substance during weighing,
and aerosolization.
OPINION
Per Curiam:
On appeal, Cristobal Morales argues that he was improperly denied eight peremptory challenges during
voir dire, that he should have been granted a continuance of trial, and that there was insufficient evidence to
convict him. We agree with Morales on the first issue only, and reverse.
While investigating narcotics transactions, Las Vegas police officers observed Morales engaging in what
they believed to be a hand-to-hand drug sale. The officers followed Morales's car and eventually stopped him
after he ran a red traffic light. The officers observed Morales drop a cigarette package to the ground as he
exited. The package was tested and contained 28.3 grams of cocaine. By the time of the trial two years later,
the impounded cocaine weighed only 27.9 grams. At the time of the offense, trafficking in a controlled
substance carried a possible sentence of life imprisonment only if the weight of the controlled substance was
28 grams or more. NRS 453.3385(3).
On the first day of trial, Morales's attorney made a motion to continue the trial so that Morales could
receive a psychiatric examination. Morales's attorney was concerned about Morales's mental condition
primarily because of events occurring the night before trial. Apparently Morales believed that his former
attorney possessed secret papers that would exonerate Morales. While attempting to find these alleged papers
the night before trial, Morales was apprehended inside his former attorney's office by the police who
discovered Morales to be armed. After considering this information, the district court judge denied Morales's
motion for continuance, concluding that the motion was a delaying tactic.
After denying the motion for continuance, the court addressed Morales's attorney's request for
eight peremptory challenges rather than four.
Morales's attorney's request for eight peremptory challenges rather than four. Morales's attorney argued that
since the offense charged could be punished by life imprisonment, he was entitled to eight peremptory
challenges. The district court determined that the appellant was entitled to only four peremptory challenges.
Morales's attorney used all of the allowed peremptory challenges, two of which challenged two jurors that
Morales's attorney unsuccessfully attempted to excuse for cause.
At the conclusion of the jury trial, the jury returned a verdict of guilty of trafficking in a controlled substance
of more than 28 grams. The district court sentenced Morales to twenty-five years incarceration and ordered him
to pay a fine of $500,000.
Peremptory challenges
[Headnote 1]
NRS 175.051 states that a defendant is entitled to eight peremptory challenges if the offense is punishable by
death or life imprisonment.
1
In this case, Morales was charged with trafficking in a controlled substance of 28
grams or more, which, at the time of the offense, was a felony punishable by imprisonment for either life or a
definite term of not less than 25 years. NRS 453.3385(3).
[Headnote 2]
The district court and the State relied on the holding in Nootenboom v. State, 82 Nev. 329, 332-33, 418 P.2d
490, 491 (1966). In Nootenboom this court held that a defendant is entitled to eight peremptory challenges only
when no shorter sentence than life may be imposed. Given the significant changes in the statutory penalties since
Nootenboom was decided in 1966, we conclude that the holding of Nootenboom is no longer good law and
should be overruled. Public policy is better served by allowing eight peremptory challenges whenever a life
sentence may be imposed upon conviction of the offense.
At oral argument, the State conceded that Nootenboom is no longer good law and that Morales was indeed
entitled to eight peremptory challenges. However, the State argued that the district court's failure to allow
Morales eight peremptory challenges was harmless error. We cannot agree. The improper limitation of
peremptory challenges is not subject to harmless error analysis on this record.
__________

1
NRS 175.051 states:
1. If the offense charged is punishable by death or by imprisonment for life, each side is entitled to eight
peremptory challenges.
2. If the offense charged is punishable by imprisonment for any other term or by fine or by both fine and
imprisonment, each side is entitled to four peremptory challenges.
. . . .
this record. We conclude that Morales was entitled to eight peremptory challenges. Our decision regarding the
number of peremptory challenges in this type of case is prospective and is not to be applied retrospectively.
Competency of the defendant
[Headnote 3]
Morales argues that the district court erred in not allowing him to be evaluated for competency before trial.
We find this contention to be without merit.
[Headnotes 4, 5]
NRS 178.405 does provide that where a defendant's competency is in doubt, the court should suspend the
trial until the question of competency is settled. A defendant may not be tried while incompetent. Incompetency
exists when the party is unable to assist his counsel in his defense. See NRS 178.400. Morales argues that the
district court should have suspended the trial because appellant's actions the night prior to trial suggested a lack
of competency.
2

[Headnote 6]
Where there is reasonable doubt regarding a defendant's competency, a district court's failure to order a
competency evaluation constitutes an abuse of discretion and a denial of due process. See Ford v. State, 102
Nev. 126, 133, 717 P.2d 27, 31-32 (1986); Melchor-Gloria v. State, 99 Nev. 174, 180, 660 P.2d 109, 113
(1983). Appellant's actions in breaking into his prior attorney's office while armed to look for a document were
disturbing. However, the district court did not abuse its discretion by denying the motion for a continuance. The
actions of Morales were more indicative of an attempt to assist his attorney, however illegally, rather than
incompetency. The record contains no evidence that Morales was unable to remember the events relating to his
drug arrest, communicate with his attorney or otherwise assist in his own defense. While a single incident of
unusual behavior might have indicia that would cause a court to question the competency of an individual, such
indicia are not present here.
Sufficiency of the evidence
[Headnote 7]
Morales contends there was insufficient evidence to support his conviction.
__________

2
At oral argument, Morales's attorney also stated that Morales had threatened to kill himself and his prior
attorney on the same evening. However, this information is not contained in the trial transcript and apparently
the district court judge was not informed of this allegation.
conviction. His contention hinges on the weight of the cocaine seized by the police. Morales's conviction for
trafficking in a controlled substance in an amount greater than 28 grams can stand only if a reasonable jury could
have found that the cocaine weighed more than 28 grams. We review the jury's conclusion that the cocaine did
weigh more than 28 grams by first viewing the evidence in the light most favorable to the prosecution, and then
determining whether a rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. See Lisle v. State, 113 Nev. 540, 555, 937 P.2d 473, 482 (1997).
In this case, it is not disputed that the cocaine was weighed twice and that the substance weighed 28.3 grams
when Morales was arrested but weighed only 27.9 grams when weighed days before trial. At trial, the State
presented a criminalist who testified that the loss in weight would be expected from moisture loss, transferring
the substance during weighing, and aerosolization. The criminalist also testified that data since 1990 revealed
that testing the weight of substances almost always resulted in weight loss. Based on this testimony, we hold that,
viewing the evidence in the light most favorable to the prosecution, a reasonable jury could have determined that
the cocaine seized from appellant weighed more than 28 grams.
Based on the above discussion, we reverse Morales's conviction and remand for a new trial on the basis of
the failure to grant the defendant eight peremptory challenges.
____________
116 Nev. 23, 23 (2000) Graham v. State
LESLIE EUGENE GRAHAM, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 31192
January 26, 2000 992 P.2d 255
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of first-degree murder. Eighth
Judicial District Court, Clark County; Mark W. Gibbons and Jeffrey D. Sobel, Judges.
Defendant was convicted in the district court of one count of first-degree murder, and he appealed. The
supreme court, Maupin, J., held that (1) defendant was not entitled to instructions on either second-degree
murder or involuntary manslaughter, and (2) error in instructing jury on involuntary manslaughter without also
instructing jury on second-degree murder was harmless.
Affirmed.
Morgan D. Harris, Public Defender, and Robert L. Miller and Howard Brooks, Deputy Public Defenders,
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and Christopher J.
Laurent and Brian S. Rutledge, Deputy District Attorneys, Clark County, for Respondent.
1. Homicide.
Once it is proved that a homicide was done with malice, and thus constitutes murder, the murder is in the first degree as a matter
of law if it was done in an enumerated manner as shown by the particular facts of an individual case. NRS 200.030(1).
2. Homicide.
There is no need to deem a murder specifically enumerated in the first-degree murder statute deliberate and premeditated. The
question of willfulness, deliberation, and premeditation does not arise, either legally or factually, when a murder is done in an
enumerated manner. NRS 200.030(1).
3. Homicide.
To sustain a conviction under the willful, deliberate and premeditated killing subcategory of first-degree murder, proof of
willfulness, deliberation, and premeditation, whether direct or circumstantial, must be established, and failure to establish such proof
renders the offense murder in the second degree. NRS 200.030(1)(a).
4. Homicide.
It is unnecessary to instruct juries on deliberation, premeditation, and second-degree murder when proofs in the case can only
support a theory of guilt described within one of the specifically enumerated categories set forth in the first-degree murder statute. NRS
200.030(1).
5. Homicide.
Second-degree murder instruction was not warranted in prosecution for first-degree murder by child abuse by evidence that
eight-month-old infant died of three separate skull fractures caused by blunt force trauma while in defendant's care, and that
defendant's explanation that infant hit her head in accidental fall out of bed was inconsistent with her injuries. NRS 200.030(1).
6. Homicide.
Involuntary manslaughter instruction was not warranted in prosecution for first-degree murder by child abuse by evidence that
eight-month-old infant died of three separate skull fractures caused by blunt force trauma while in defendant's care, and that
defendant's explanation that infant hit her head in accidental fall out of bed was inconsistent with her injuries. NRS 200.030(1).
7. Homicide.
Error in instructing jury in prosecution for first-degree murder by child abuse on involuntary manslaughter without also instructing
jury on second-degree murder was harmless, where proofs before jury were only consistent with finding of either guilty of child-abuse
murder or not guilty. NRS 200.030(1).
OPINION
By the Court, Maupin, J.:
Appellant Leslie Eugene Graham was charged with first-degree murder in connection with the death
of Chelsey Hachez, the eight-month-old daughter of his live-in companion, Kimberly Ann Hachez. The
fatal injuries were sustained while Graham was at home alone with the child. Although he gave slightly
different versions of the incident to family members, police, and paramedics, he primarily maintained
that the baby was rendered unconscious when she fell from a bed and struck her head.
Graham did not testify at trial. His version was presented to the jury through other witnesses.
Kimberly Hachez testified that Graham had been with Chelsey hundreds of times, was good with her, and
treated her like a daughter. Graham's former spouse and a former companion both testified that he had
never been anything other than caring and patient around small children.
Uncontroverted medical evidence established that the cause of death was hemorrhage and brain
swelling associated with three separate skull fractures caused by blunt force trauma. Experts testified
that the injuries were not consistent with a mere fall from a bed onto the floor.
The jury found Graham guilty of murder in the first degree. Graham received a sentence of life in the
Nevada State Prison without the possibility of parole. He appeals.
DISCUSSION
Graham was convicted based upon a criminal information charging him with open murder solely on the
theory that he subjected Chelsey to acts of child abuse resulting in her death. Graham claims entitlement
to a new trial because the district court refused instructions and verdict forms on the issue of second-degree
murder. We conclude Graham's contention lacks merit.
NRS 200.010 defines murder as the unlawful killing of a human being, with malice aforethought, either
express or implied. Express malice is defined in terms of deliberate intention unlawfully to take away . . .
life; malice is implied when no considerable provocation appears, or when all the circumstances of the
killing show an abandoned and malignant heart. NRS 200.020. The jury was instructed on these principles.
It was also instructed that malice, as applied to murder, does not necessarily import ill-will toward the
victim, but signifies general malignant recklessness of others' lives and safety or disregard of social duty. See
Thedford v. Sheriff, 86 Nev. 741, 744, 476 P.2d 25, 27 {1970)
25, 27 (1970) (citing State v. Judge, 38 S.E.2d 715 (S.C. 1946); Chisley v. State, 95 A.2d 577 (Md. 1953)).
Once the factfinder concludes that a murder has been committed, that is an unlawful killing with malice
aforethought, the offense must then be classified by degree. The Nevada legislature has created two general
categories of murder, murders of the first and second degree. First-degree murder is murder which is: (a)
perpetrated by means of poison, lying in wait, torture or child abuse, or by any other kind of willful, deliberate
and premeditated killing; (b) committed in the perpetration or attempted perpetration of certain specified
life-endangering felonies, i.e., felony murder; or (c) committed to avoid or prevent lawful arrest by a peace
officer or effect the escape of any person from legal custody. NRS 200.030(1) (emphasis added).
1
The second
category, murder of the second degree, is all other kinds of murder. NRS 200.030(2).
Graham contends that second-degree murder is a lesser-included offense of all murders of the first degree,
including murder perpetrated by means of child abuse. See Miner v. Lamb, 86 Nev. 54, 58, 464 P.2d 451, 453
(1970) (An open murder complaint charges murder in the first degree and all necessarily included offenses.).
Thus, Graham argues that the district court erred in its refusal to give the following instructions:
A. Murder of the second degree is also the unlawful killing of a human being with malice aforethought
when there is manifested an intention unlawfully to kill a human being but the evidence is insufficient to
establish deliberation and premeditation.
B. The unlawful killing of a human being with malice aforethought, but without a deliberately formed
and premeditated intent to kill, is murder of the second degree when the killing results from an unlawful
act, the natural consequences of which are dangerous to life, which act is intentionally performed by a
person who knows that his conduct endangers the life of another, even though the person has not
specifically formed an intention to kill.
2

The district court refused these instructions on the ground that murders by child abuse are defined by statute
as first-degree murder and cannot be reduced in grade to murder of the second degree.
__________

1
The 1999 legislature amended NRS 200.030, transferring murders perpetrated by child abuse into the
felony-murder subcategory of first-degree murder. 1999 Nev. Stat., ch. 319, 3, at 1335.

2
The second quoted proposed instruction is based upon Sheriff v. Morris, 99 Nev. 109, 659 P.2d 852 (1983).
In Morris we recognized a second-degree felony murder rule involving homicides committed without specific
intent to kill in the course of a limited number of life-endangering felonies not included within NRS
200.030(1)(b). Id. at 113-18, 659 P.2d at 856-59.
der and cannot be reduced in grade to murder of the second degree. Accordingly, the district court instructed the
jury that [m]urder by child abuse is Murder in the First Degree, and that [c]hild abuse means physical injury
of a nonaccidental nature to a child under the age of 18 years. No instructions on deliberation and
premeditation were given.
3

Graham argues that Williams v. State, 110 Nev. 1182, 885 P.2d 536 (1994), renders child-abuse murder
cases subject to a second-degree murder analysis. In Williams, we concluded that the term nonaccidental as
used in NRS 200.030 was not unconstitutionally vague because
[a]ny person of ordinary intelligence who contemplates causing the purposeful, or nonaccidental, injury
of a child should be readily aware, . . . that such conduct constitutes child abuse, and, if the abuse results
in the death of the child, could subject the perpetrator to a conviction of first-degree murder.
Id. at 1188, 885 P.2d at 540 (emphasis added). Graham contends that the phrase purposeful, or nonaccidental,
injury demonstrates our intent to draw a distinction, for purposes of gradating degrees of murder, between
purposeful acts committed without intent to injure or kill and purposeful acts committed with the intent to injure
or kill. Absent intent to injure, Graham reasons, the offense may be second-degree murder under two theories:
one, there is a lack of deliberation and premeditation, or two, there is no intent to kill so the act falls within the
felony-murder rule of Morris, 99 Nev. 109, 659 P.2d 852. Because this court did not intend to imply such a
proposition in Williams, we take this opportunity to reject it.
[Headnote 1]
The murders specifically enumerated in NRS 200.030(1)those perpetrated by means of poison, lying in
wait, torture, and child abuse; those committed in the perpetration or attempted perpetration of certain
life-endangering felonies; and those committed to avoid arrest or to effect an escape from custodyconstitute
murder of the first degree. Once it is proved that a homicide was done with malice and thus constitutes murder,
4
the murder is in the first degree as a matter of law if it was done in an enumerated manner
as shown by the particular facts of an individual case.
__________

3
Although Graham contends he was entitled to a second-degree murder instruction based upon lack of
deliberation and premeditation, he offered no instruction requiring the jury to find deliberation and
premeditation in order to convict him of first-degree murder. Under our ruling today, there would have been no
legal justification for doing so.

4
Felony murder is the only category of homicide where by law the malice required for murder is supplied by
the intent to commit an underlying felony. See Ford v. State, 99 Nev. 209, 215, 660 P.2d 992, 995 (1983).
the first degree as a matter of law if it was done in an enumerated manner as shown by the particular facts of an
individual case.
[Headnote 2]
There is no need to deem an enumerated murder deliberate and premeditated, as this court and others have
sometimes assumed. For example, in State v. Randolph, 49 Nev. 241, 246-47, 242 P. 697, 698 (1926), this court
approved of a jury instruction which stated that where a killing is perpetrated by an enumerated means, such as
poison, or done in the perpetration or attempt to perpetrate an enumerated felony,
the test question, Is the killing willful, deliberate, and premeditated?' is answered by the statute itself,
and the jury have no option but to find the prisoner guilty in the first degree. Hence, so far as these two
cases are concerned, all difficulty as to the question of degree is removed by the statute.
The actual question answered by the statute is simply, Is the murder in the first degree? The question of
willfulness, deliberation, and premeditation does not arise, either legally or factually, when a murder is done in
an enumerated manner. See, e.g., State v. Johnson, 344 S.E.2d 775, 781 (N.C. 1986) (when a murder is
perpetrated by an enumerated means, the presence or absence of premeditation and deliberation is irrelevant);
People v. Thomas, 261 P.2d 1, 3 (Cal. 1953) (by statutory definition, a murder by poison, lying in wait, or
torture is of the first degree; whether such a murder is willful, deliberate, and premeditated is not a legal or
factual question); cf. State v. Munios, 44 Nev. 353, 358, 195 P. 806, 808 (1921) (use of poison, lying in wait,
etc., to commit murder are merely circumstances of aggravation, which, in the law, amount to, or are the
equivalent of, premeditation).
[Headnote 3]
Thus, the murders enumerated in NRS 200.030(1) are legislatively deemed to be murder of the first degree.
The only subcategory of first-degree murder not so specifically defined is that accomplished by willful,
deliberate and premeditated killing, referred to in the second phrase of NRS 200.030(1)(a). To sustain a
conviction under this subcategory of first-degree murder, proof of willfulness, deliberation, and premeditation,
whether direct or circumstantial, must be established. Failure to establish such proof renders the offense murder
in the second degree.
By contrast, when an enumerated first-degree murder is charged, such as murder by child abuse, the presence
or absence of deliberation and premeditation is of no consequence. Such murders do not fall within the category
of murder that can be reduced in degree by failure to prove deliberation and premeditation.
reduced in degree by failure to prove deliberation and premeditation. Nor can such a murder be reduced in
degree because it is committed without intent to kill and would otherwise fall within the ambit of Morris: if done
with malice and in an enumerated manner, the killing constitutes first-degree murder by legislative fiat.
[Headnote 4]
We therefore hold that it is unnecessary to instruct juries on deliberation, premeditation, and second-degree
murder when proofs in the case can only support a theory of guilt described within one of the specifically
enumerated categories set forth in NRS 200.030(1).
[Headnote 5]
Here, the only evidence supporting Graham's defense was his statements, through others, that the death of
Chelsey was accidental. One of his second-degree murder theories offered on appeal is based upon a failure of
proof of Graham's intent to injure the child. If either express or implied malice had not been proved, Graham
should have been found innocent of the charges against him. However, the nature of the injuries administered to
Chelsey circumstantially established the malice requirement. The injuries and the apparently false explanation to
the other witnesses satisfied the necessary proof of child abuse. Graham's argument for a second-degree murder
instruction, based upon a lack of intent, is inconsistent with any of the evidence in this case because the only
cause of death proved below was the administration of the three separate skull fractures, which could not have
resulted from an accidental fall from the bed. See Rice v. State, 113 Nev. 1300, 1310, 949 P.2d 262, 268-69
(1997); Lisby v. State, 82 Nev. 183, 187-88, 414 P.2d 592, 595 (1966). Because the sole agency of death proved
in this case was child abuse, this offense is, by definition, first-degree murder. Because the jury found at the
very least implied malice, i.e., that Graham acted with an abandoned and malignant heart in reckless disregard of
Chelsey's life and safety, lack of specific intent or of deliberation and premeditation to kill cannot, as a matter of
law, reduce the degree of the charge.
[Headnote 6]
As an extension of his argument under Williams, Graham argues that, in the event the State failed in its proof
of child abuse, the jury could conclude that an act of neglect or endangerment had been committed. This,
Graham further reasons, would entitle the jury to return a verdict of involuntary manslaughter or second-degree
murder under Morris. Under this reasoning, manslaughter would be the appropriate verdict if, under the
instruction given, the neglect or endangerment predicate involved proof of an unlawful
act,
instruction given, the neglect or endangerment predicate involved proof of an unlawful act, or a lawful act
which probably might produce death in an unlawful manner. See NRS 200.070.
5
In this regard, the jury was
given the following instruction on involuntary manslaughter:
Involuntary Manslaughter is the killing of a human being, without any intent to do so, in the
commission of an unlawful act or a lawful act which probably might produce such a consequence in an
unlawful manner; but where the involuntary killing occurs in the commission of an unlawful act, which,
in its consequence, naturally tends to destroy the life of a human being, or is committed in the prosecution
of a felonious intent, the offense is Murder.
6

Murder under this instruction ordinarily refers to second-degree felony murder. See Morris, 99 Nev. 109,
659 P.2d 852. Thus, a Morris instruction such as that rejected below is usually given in conjunction with the
involuntary manslaughter instruction, which was read to the jury in this case. Graham therefore argues that,
under Morris and under the manslaughter instruction, a second-degree murder verdict would have been
appropriate if the predicate proof of neglect or endangerment involved actions toward the child that would
inherently or naturally tend to destroy life, but which were not committed with the intent to do so. Because the
involuntary manslaughter instruction defined how an act that might qualify as manslaughter was murder,
Graham also contends that the jury was restricted to a finding of murder in the first degree because no
second-degree murder instruction was given. That is, without a second-degree murder instruction dovetailing the
involuntary manslaughter instruction, the only form of verdict and instruction on murder given to the jury was
murder in the first degree.
__________

5
NRS 200.070 states:
Except under the circumstances provided in NRS 484.348 and 484.377, involuntary manslaughter is
the killing of a human being, without any intent to do so, in the commission of an unlawful act, or a
lawful act which probably might produce such a consequence in an unlawful manner, but where the
involuntary killing occurs in the commission of an unlawful act, which, in its consequences, naturally
tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent, the
offense is murder.

6
Although the instruction attempted to quote directly from NRS 200.070, the punctuation between the words
unlawful act and or a lawful act was omitted. This changed the meaning of the statute. However, as noted
below, the use of this instruction as read to the jury was harmless error. A correct quotation of the statute in the
instruction without a corresponding second-degree murder instruction would not have changed the outcome of
this appeal.
[Headnote 7]
We conclude that, had Graham's proofs been consistent with this theory, it would have been error not to give
the second-degree murder instruction along with the involuntary manslaughter instruction. Cf. Noonan v. State,
115 Nev. 184, 189, 980 P.2d 637, 639-40 (1999). However, we also conclude that the proofs before this jury
were only consistent with a finding of either guilty of child-abuse murder or not guilty. Leaving a child alone on
an ordinary bed under the circumstances described by Graham is not an unlawful act of either neglect or
endangerment, nor is it a lawful act that probably might cause death in an unlawful manner, nor is it an act that
would naturally tend to destroy life. Thus, the use of the involuntary manslaughter instruction without a
conforming second-degree murder instruction was harmless error. In fact, under our ruling herein, the
involuntary manslaughter instruction should not have been given.
Graham also contends that by requiring some proof of second-degree murder before allowing instruction on
that offense, a defendant is forced to put on self-incriminating evidence in violation of the Fifth Amendment to
the United States Constitution.
7
We disagree. An absence of proof of an element of a lesser-included offense
never compels a defendant to put on any evidence. Under Graham's theory, he is simply entitled to the
instruction despite an absence of proof supporting it. Without evidence supporting a second-degree murder
conviction, our adoption of Graham's notion of this area of law would legitimize simple lenity as a separate
doctrinal basis for a jury instruction. In this, he seeks our embrace of a form of jury nullification. We decline
Graham's invitation to embark into these troubling jurisprudential waters.
8

The district court correctly refused Graham's second-degree murder instructions and the corresponding forms
of verdict. Accordingly, the judgment of conviction below is affirmed.
Rose, C. J., Young, Shearing, Agosti, Leavitt and Becker, JJ., concur.
__________

7
The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness
against himself. U.S. Const. amend. V.

8
Our ruling today renounces lenity as a separate basis for giving instructions on murder of the second
degree. Of course, in any case where there is evidence supporting either first- or second-degree murder, a jury is
entitled to extend lenity and convict of the lesser offense. While juries may not be instructed on this issue,
convictions rendered on this basis, in accord with our prior decisions, may be upheld. See State v. Lindsey, 19
Nev. 47, 5 P. 822 (1885).
____________
116 Nev. 32, 32 (2000) Ronning v. State
ERIC RONNING, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 31604
January 26, 2000 992 P.2d 260
Petition for en banc reconsideration of an order dismissing appeal from a judgment of conviction. Second
Judicial District Court, Washoe County; Steven P. Elliott, Judge.
Defendant pleaded guilty in the district court to one count of felony driving under the influence (DUI), and
he appealed. The supreme court dismissed appeal, and defendant filed timely petition for rehearing. The
supreme court denied petition, and defendant filed timely petition for en banc reconsideration. The supreme
court held that defendant's two prior DUI convictions had been properly proven in district court.
Petition denied.
Law Offices of William B. Cole, Lake Tahoe; and Richard F. Cornell, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Joseph
R. Plater, Deputy District Attorney, Washoe County, for Respondent.
Automobiles.
Defendant's two prior convictions for driving under the influence (DUI) were properly proven in prosecution for felony DUI, even
though state failed to present evidence of prior convictions at sentencing, where district court had conducted extensive hearing as to
constitutional validity of prior convictions, and convictions had been entered into evidence prior to sentencing hearing.
OPINION
Per Curiam:
Appellant was convicted, pursuant to a guilty plea, of one count of felony driving under the influence. On
direct appeal, appellant argued that one of his prior convictions should have been stricken as constitutionally
invalid. Appellant also argued that his case should be remanded to the district court for re-sentencing as a
second-offense DUI because the state failed to prove two prior convictions at sentencing. This court
dismissed the appeal, noting that the district court had conducted an extensive hearing as to the
constitutional validity of the prior convictions, and that the convictions had been entered
into evidence prior to the sentencing hearing.
constitutional validity of the prior convictions, and that the convictions had been entered into evidence prior to
the sentencing hearing. Further, this court concluded that the district court did not err in finding that the prior
convictions were valid for enhancement purposes.
Appellant thereafter filed a timely petition for rehearing contending that this court had overlooked authority
controlling a dispositive issue in this case. Specifically, appellant argued that NRS 484.3792(2)
1
and two
previous decisions of this court require that the state present evidence of prior convictions at sentencing. See
Phipps v. State, 111 Nev. 1276, 903 P.2d 820 (1995); Robertson v. State, 109 Nev. 1086, 863 P.2d 1040 (1993).
This court denied rehearing, noting that the issue had already been presented to the court and could not be
reargued on rehearing. NRAP 40(c)(1). The order denying rehearing further noted that the prior offenses had
been entered into evidence and determined to be constitutionally valid prior to sentencing. Appellant then filed
this timely petition for en banc reconsideration.
NRAP 40A(a) provides: En banc reconsideration of a panel decision is not favored and ordinarily will not
be ordered except when (1) reconsideration by the full court is necessary to secure or maintain uniformity of its
decisions, or (2) the proceeding involves a substantial precedential, constitutional or public policy issue. We
conclude, however, that we should take this opportunity to clarify our decision in Robertson.
2

Appellant contends that this court's decision in Robertson requires that the prior convictions must only be
proven at the sentencing hearing. In Robertson, this court held that if the state failed to present evidence
concerning prior convictions at the sentencing hearing, [the state] is precluded from presentation of evidence
concerning those prior offenses at any subsequent sentencing hearing involving the instant offense. 109 Nev. at
1089, 863 P.2d at 1042 (emphasis added). Nothing in Robertson prohibits the state from proving the prior
convictions at some time prior to the sentencing hearing. Further, we do not read NRS 4S4.3792{2) so
narrowly as to require that the prior convictions must only be proven at the actual
sentencing hearing.
__________

1
NRS 484.3792(2) provides, in part: The facts concerning a prior offense must be alleged in the complaint,
indictment or information, must not be read to the jury or proved at trial but must be proved at the time of
sentencing . . . .

2
To the extent that appellant argues that he should be allowed to attack his prior convictions collaterally, we
conclude that reconsideration is not warranted. On January 7, 2000, appellant submitted a memorandum of
supplemental authorities. On January 13, 2000, appellant filed a motion requesting permission to file the
supplemental argument and authorities. Cause appearing, we grant the motion and we direct the clerk of this
court to file the supplemental authorities and argument submitted on January 7, 2000. Further, we conclude that
appellant's supplemental argument is without merit.
484.3792(2) so narrowly as to require that the prior convictions must only be proven at the actual sentencing
hearing.
3
As previously noted, in the instant case, the district court conducted a hearing prior to sentencing and
considered the constitutional validity of the prior convictions. The convictions had been proven at the time of
sentencing. Thus, the requirements of NRS 484.3792(2) had been satisfied.
4

Appellant has failed to demonstrate that en banc reconsideration is warranted in this appeal, and the petition
is therefore denied.
5

____________
116 Nev. 34, 34 (2000) Morrison v. Beach City LLC
DENNIS MORRISON, Appellant, v. BEACH CITY LLC, a Nevada Limited Liability Company, dba THE
BEACH; and BARBARY COAST HOTEL AND CASINO, dba THE BEACH CLUB RACE &
SPORTS BOOK, Respondents.
No. 32595
January 26, 2000 991 P.2d 982
Appeal from an order of the district court dismissing appellant's complaint for lack of subject matter
jurisdiction. Eighth Judicial District Court, Clark County; Myron E. Leavitt, Judge.
Patron brought personal injury action against nightclub, seeking recovery for injuries he sustained when he
slipped and fell on paper napkins on club's dance floor. Nightclub filed motion to dismiss for lack of subject
matter jurisdiction. The district court granted motion, and patron appealed. The supreme court held that district
court erred in dismissing patron's action against nightclub for failure to meet jurisdictional damages requirement,
based upon statements made by patron's attorney in offer to compromise claim.
Reversed and remanded.
__________

3
Of course, the facts concerning the prior offenses must not be read to the jury or proved to the jury
at trial.

4
Appellant also cites this court's decision in Phipps in support of his argument. Phipps is inapposite to
the instant case. In Phipps, the state filed an information that alleged two prior DUI convictions. The
justice court had determined that one of those convictions had occurred over seven years prior, and was
therefore not legally sufficient for enhancement purposes. At the sentencing hearing, the state attempted
to prove a conviction that had not been alleged in the information. The failure to allege the conviction in
either the complaint or information is a clear violation of NRS 484.3792(2), which requires that the facts
concerning the prior offenses must be alleged in the complaint or information. There is nothing in Phipps
to preclude the proving of a prior conviction at a hearing prior to the sentencing hearing.

5
On November 29, 1999, appellant filed a motion to stay issuance of remittitur in this appeal. In light
of this decision, the motion is denied as moot.
Kravitz, Schnitzer & Sloane, Chtd., and M. Bradley Johnson, Las Vegas, for Appellant.
Parnell and Associates, Las Vegas, for Respondents.
1. Courts.
The burden of proving subject matter jurisdiction is properly placed on the plaintiff.
2. Courts.
The state constitution confers both original and appellate subject matter jurisdiction upon the district courts. Const. art. 6, 6.
3. Courts.
The district court has original jurisdiction over personal injury actions only if the plaintiff claims more than $7,500.00 in damages.
4. Pretrial Procedure.
In order for the district court to dismiss a case based on lack of subject matter jurisdiction, it must appear to a legal certainty that
the claim is worth less than the jurisdictional amount of $7,500.00.
5. Courts.
A claim in excess of the requisite amount, made in good faith, satisfies the jurisdictional requirement.
District court erred in dismissing patron's personal injury action against nightclub for failure to meet jurisdictional damages
requirement, based upon statements made by patron's attorney in offer to compromise claim.
7. Courts.
A district court may inquire into an attorney's possible bad faith in claiming damages to meet the jurisdictional limit of the district
court.
Before Maupin, Shearing and Becker, JJ.
OPINION
Per Curiam:
In this appeal, we consider whether a district court may rely upon plaintiff's counsel's statements made in
an offer to compromise in determining whether plaintiff has met the jurisdictional damages requirement of
the district court. We conclude that a district court may not rely upon such statements and therefore reverse
the district court's order.
FACTS
Appellant Dennis Morrison filed a complaint in the district court claiming damages in excess of
$10,000.00 for personal injuries allegedly suffered on the premises of The Beach, a nightclub. Appellant
claimed that he was a patron of the club, and that he slipped on paper napkins on the dance floor and broke
a bone in his right foot.
in his right foot. According to appellant, the club knowingly created a dangerous situation by deliberately
blowing napkins onto the dance floor. Appellant contended that he suffered a fractured foot and mental stress
and anxiety, which may be permanent and disabling in nature, and that he lost range of motion on his right
foot and suffers from continuing pain. He requested both general and special damages in excess of $10,000.00.
In addition, appellant alleged that his damages were presently unascertainable, and will continue into the
future. Respondents filed an answer.
After respondents' answer was filed, appellant's attorney forwarded to respondents appellant's medical
records and a letter indicating that the value of the action [did] not warrant full-blown litigation. A
pre-arbitration conference was held, after which appellant's attorney sent a letter to respondents' attorney seeking
to settle the case for $2,000.00, and stated his belief that appellant would recover approximately that amount if
the matter proceeded to arbitration.
Subsequently, respondents filed a motion in the district court to dismiss for lack of subject matter jurisdiction
based on appellant's offer to compromise. Appellant responded by filing an opposition to respondents' motion
and a counter-motion for sanctions and to strike a fugitive document, namely, appellant's offer to compromise.
Respondents then filed a reply to appellant's opposition and its opposition to appellant's counter-motion for
sanctions. In response, appellant filed a reply to the opposition to the countermotion for sanctions.
The court granted respondents' motion, and in a brief order dismissed the complaint, without prejudice, for
lack of subject matter jurisdiction and denied the counter-motion for sanctions and to strike. This appeal
followed.
DISCUSSION
Appellant contends the district court committed reversible error by granting respondents' motion to dismiss
based upon appellant's offer to compromise. We agree.
[Headnote 1]
The Nevada Rules of Civil Procedure provide that the defense of lack of jurisdiction over the subject matter
may, at the option of the defendant, be made by motion. NRCP 12(b)(1). NRCP 12(h)(3) provides that
[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject
matter, the court shall dismiss the action. The burden of proving the jurisdictional requirement is properly
placed on the plaintiff. See Nelson v. Keefer, 451 F.2d 289 (3d Cir. 1971); 2 James Wm.
Moore et al., Moore's Federal Practice 12.30[5] (3d ed. 1999) [hereinafter Moore's]; 15 Moore's 102.107.
In federal practice, the district court can take evidence on the claim that the complaint does not fall within the
subject matter jurisdiction requirements of the court, and such evidence is not necessarily confined to the
allegations of the complaint. See 15 Moore's 102.107[1] and [2].
[Headnotes 2, 3]
The Nevada Constitution confers both original and appellate subject matter jurisdiction upon the district
courts. The constitution provides that district courts do not have original jurisdiction over actions that fall within
the original jurisdiction of the justices' courts. Nev. Const. art. 6, 6. NRS 4.370(1)(b) confers original
jurisdiction upon justices' courts over civil actions for damages for personal injury, if the damages claimed do
not exceed $7,500.00. Thus, the district court has original jurisdiction over such actions only if the plaintiff
claims more than $7,500.00 in damages.
This court has previously determined jurisdiction solely on the basis of damages claimed in the complaint. In
Royal Insurance v. Eagle Valley Construction, Inc., 110 Nev. 119, 120, 867 P.2d 1146, 1147 (1994), the district
court's jurisdictional limit was not met because the claimed damages were less than the jurisdictional amount as
set forth in NRS 4.370(1)(b), and attorney fees and costs would not be considered in order to raise the amount in
controversy above the jurisdictional limit of the district court.
Appellant argues that the complaint, which claimed damages in excess of $10,000.00, lies within the
jurisdiction of the district court.
1
Appellant contends that although actual recovery could be less than
$10,000.00, that possibility does not preclude the district court from having jurisdiction. In Royal Insurance, the
district court dismissed a claim for lack of subject matter jurisdiction because the claimed damages in the
complaint, exclusive of costs and attorney fees, were less than the jurisdictional threshold. Pursuant to Royal
Insurance, appellant claims the district court erred in dismissing appellant's complaint because the claimed
damages were in excess of the jurisdictional amount as set forth in NRS 4.370(1)(b). The present case, however,
unlike Royal Insurance, requires the court to look beyond the damages claimed, and evaluate whether
those damages were claimed in good faith.
__________

1
It is likely that appellant pleaded damages in excess of $10,000.00 because of NRCP 8(a). Where a
claimant seeks damages of more than $10,000, the demand shall be for damages in excess of $10,000' without
further specification of amount. NRCP 8(a).
claimed, and evaluate whether those damages were claimed in good faith.
[Headnotes 4, 5]
Although we have not previously addressed what standards should guide the district court in determining
whether the claimed damages meet the jurisdictional requirement, federal courts apply a legal certainty test to
determine whether a complaint satisfies the amount-in-controversy requirement of diversity jurisdiction under 28
U.S.C. 1332. In order to dismiss a case based on lack of subject matter jurisdiction, it must appear to a legal
certainty that the claim is worth less than the jurisdictional amount. See St. Paul Indemnity Co. v. Cab Co., 303
U.S. 283, 288-89 (1938); Budget Rent-A-Car Inc. v. Higashiguchi, 109 F.3d 1471, 1473 (9th Cir. 1997). A
claim in excess of the requisite amount, made in good faith, satisfies the jurisdictional requirement.
Higashiguchi, 109 F.3d at 1473; see also St. Paul, 303 U.S. at 288-89.
A court should be cautious about dismissing a complaint for failing to meet the jurisdictional requirement:
Under the legal certainty test, it should be emphasized, the plaintiff must establish merely that it
does not appear to a legal certainty that the claim is below the jurisdictional minimum. Thus, under this
standard, courts must be very confident that a party cannot recover the jurisdictional amount before
dismissing the case for want of jurisdiction.
15 Moore's 102.106[1]. We adopt the federal courts' legal certainty test for determining the jurisdictional
amount in controversy in Nevada district courts.
[Headnote 6]
We must next consider what kind of evidence is appropriate for demonstrating that subject matter
jurisdiction exists. Appellant maintains that the district court erred in denying his motion to strike, and that
respondents violated Nevada law by tendering appellant's prior offer to compromise, which sought to settle the
case for $2,000.00. NRS 48.105(1) provides, in relevant part, that evidence of an offer to compromise a claim,
which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the
claim or its amount. Also, [e]vidence of conduct or statements made in compromise negotiations is likewise
not admissible. NRS 48.105(1).
2
The letter in this case was nothing other than an offer to
compromise, which NRS 4S.105{1) renders inadmissible.
__________

2
NRS 48.105(2) qualifies the scope of NRS 48.105(1). Evidence need not be excluded when it is offered for
another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or
proving an effort to obstruct a criminal investigation or prosecution. Subsection (2) does not apply to the
circumstances at hand.
nothing other than an offer to compromise, which NRS 48.105(1) renders inadmissible.
3

Using offers to compromise to measure jurisdictional limits, moreover, would likely have an undesirable
chilling effect on parties' attempts to reach a settlement, because a plaintiff would fear (quite justifiably, as the
present case demonstrates) that a low offer might later be used to dismiss the case. Courts rightly encourage
offers to compromise claims. Federal Rule of Evidence 408 (the federal analog of NRS 48.105), governing
admissibility of offers to compromise, was developed to encourage the resolution of problems through
negotiation and settlement without the fear of having statements made during the negotiation process haunt a
future legal proceeding. Han v. Yang, 931 P.2d 604, 613 (Haw. Ct. App. 1997). Based on the plain language of
NRS 48.105(1), and the policy underlying this statutory provision, we conclude that relying on an offer to
compromise as evidence of a failure to satisfy the jurisdictional limit is improper.
[Headnote 7]
Yet, a district court may inquire into an attorney's possible bad faith in claiming damages to meet the
jurisdictional limit of the district court. See St. Paul, 303 U.S. at 288-89 (damages claimed must be pleaded in
good faith); Higashiguchi, 109 F.3d at 1473 (same). According to NRCP 11, a party is required to have a
reasonable basis for alleging damages in a complaint that is well grounded in fact and is warranted by existing
law or a good faith argument for the extension, modification, or reversal of existing law. The signature of the
attorney constitutes certification that to the best of his or her knowledge the pleading adheres to these guidelines.
NRCP 11 thus applies to a jurisdictional allegation and/or a claim of damages which furnishes the basis for
subject matter jurisdiction in district court. The district court may conduct a hearing to determine whether the
potential damages in a case fall below the jurisdictional threshold, although it may not rely on statements made
in settlement negotiations in making that determination.
We conclude that the district court erred when it relied on the statements made in the offer to compromise
and dismissed the complaint for lack of subject matter jurisdiction. We therefore reverse the order of the
district court and remand for further proceedings consistent with this opinion.
__________

3
Generally, a settlement offer would also be inadmissible as irrelevant. See NRS 48.025 (irrelevant evidence
inadmissible). What a party is willing to accept at a particular point in time has little or no relevance to what the
claim is potentially worth for purposes of subject matter jurisdiction. There are many variables reflected in an
offer (such as a plaintiff's immediate need for funds, and/or the need to avoid a potential loss or embarrassment
at trial) that might make it unreliable proof of the ultimate value of the claim.
reverse the order of the district court and remand for further proceedings consistent with this opinion.
____________
116 Nev. 40, 40 (2000) Nicholas v. Public Employees' Ret. Board
DAVID D. NICHOLAS, Appellant, v. THE STATE OF NEVADA, JOYCE L. WOODHOUSE, STEVE
COZINE, ALBERT C. JOHNS, SAM PALAZZOLO, HOWARD REYNOLDS, MARVIN A.
LEAVITT, and O. C. LEE, Individually and as Members of the PUBLIC EMPLOYEES'
RETIREMENT BOARD OF THE STATE OF NEVADA, WILL KEATING, as Executive Officer of
the PUBLIC EMPLOYEES' RETIREMENT BOARD OF THE STATE OF NEVADA, and
LEGISLATORS' RETIREMENT SYSTEM, Respondents.
No. 27667
ROBERT G. CRADDOCK, and LOUISE CRADDOCK, Appellants, v. THE STATE OF NEVADA, O. C. LEE,
JOYCE L. WOODHOUSE, STEVE COZINE, DR. ALBERT JOHNS, HOWARD REYNOLDS,
MARVIN A. LEAVITT, SAM PALAZZOLO, Individually and as Members of the PUBLIC
EMPLOYEES' RETIREMENT BOARD OF THE STATE OF NEVADA, and LEGISLATORS'
RETIREMENT SYSTEM, Respondents.
No. 28148
January 27, 2000 992 P.2d 262
Consolidated appeals from summary judgments on the issue of whether appellants' rights had vested, thereby
allowing them to receive the retirement benefits pursuant to the formula in Assembly Bill 820, 65th Legislature
(1989). Second Judicial District Court, Washoe County; Deborah A. Agosti, Judge (Docket No. 27667). Eighth
Judicial District Court, Clark County; Gerard J. Bongiovanni, Judge (Docket No. 28148).
Retired former members of Nevada Legislature whose retirement benefits were reduced after bill which
quadrupled amount of benefits retired legislators could receive was repealed brought action against state and
Public Employees' Retirement Board, claiming that because they retired within five-month period bill was
effective, they were entitled to receive increased benefits pursuant to formula of repealed bill. The district courts
granted summary judgment in favor of state and Board, and legislators appealed. The supreme court, Leavitt, J.,
consolidated the matters on appeal and held that legislature did not have authority to alter
legislators' retirement benefits following their retirement.
ters on appeal and held that legislature did not have authority to alter legislators' retirement benefits following
their retirement.
Reversed.
Young and Maupin, JJ., dissented.
Bowman & Robinson, Reno, for Appellant Nicholas.
Markoff & Boyers, Las Vegas, for Appellants Craddock.
Frankie Sue Del Papa, Attorney General, and Robert Auer, Deputy Attorney General, Carson City, for
Respondents.
1. Appeal and Error.
The standard of review of an appeal from a summary judgment is de novo.
Questions of law are reviewed de novo.
3. Constitutional Law.
Limited vested pension rights of public employees can be modified and absolute vested pension rights cannot be modified.
Until a public employee has earned his retirement pay, or until the time arrives when he may retire, his retirement pay is but an
inchoate right, but when the conditions are satisfied, at that time retirement pay becomes a vested right of which the person entitled
thereto cannot be deprived; it has ripened into a full contractual obligation. Const. art. 1, 15; U.S. Const. art. 1, 10; 1989 Nev.
Stat., ch. 481, 1 et seq.
5. States.
Legislature did not have authority to reduce retired legislators' pension benefits following legislature's repeal of bill which
quadrupled amount of benefits retired legislators could receive, where legislators retired and their pension rights vested within
five-month period that bill was effective. 1989 Nev. Stat., ch. 481, 1 et seq.
Public employment contracts are within the ambit of the constitution's contract clause, which prohibits a state from passing any
law impairing its contractual obligations. Const. art. 1, 15; U.S. Const. art. 1, 10.
An employee's rights to his pension benefits becomes absolutely vested when he retires and all conditions for his retirement
benefits have been met; that right is constitutionally protected against impairment once absolutely vested. Const. art. 1, 15; U.S.
Const. art. 1, 10.
When a public employee's rights to retirement benefits become absolutely vested, a contract exists between the employee and the
state which cannot be modified by unilateral action on the part of the legislature. Const. art. 1, 15; U.S. Const. art. 1, 10; 1989 Nev.
Stat., ch. 481, 1 et seq.
OPINION
By the Court, Leavitt, J.:
These two cases have been consolidated on appeal. NRAP 3(b). Both appellants are former members
of the Nevada Legislature who claim that they are entitled to certain retirement benefits pursuant to
Assembly Bill 820 (hereinafter A.B. 820) passed by the 1989 session of the Nevada Legislature, which
modified provisions of the Legislators' Retirement Law stated in NRS chapter 218. See 1989 Nev. Stat.,
ch. 481. A.B. 820 quadrupled the amount of benefits a retired legislator may receive.
Former Governor Miller vetoed A.B. 820, but his veto was overridden the same day by the legislature.
The public expressed outrage over the legislators increasing their own retirement benefits, but former
Governor Miller announced he would not call a special session to repeal the law. However, the public
clamor increased, and the former Governor called a special session of the legislature for the sole purpose
of repealing A.B. 820. The legislature convened and repealed the law.
A.B. 820 was the law of Nevada for approximately five months, from June 23, 1989, the date the
legislature overrode the Governor's veto, to November 21, 1989, when the law was repealed. Both
appellants retired during this period of time and received the increased retirement benefits until A.B. 820
was repealed. After A.B. 820 was repealed, the Public Employees' Retirement Board notified appellants
that their pension benefits would be reduced.
Appellants filed actions, claiming a vested right to the increased benefits of A.B. 820. They asserted
that the repeal of A.B. 820 violated the Contracts Clause of the United States Constitution by denying
them protection from impairment of contract. After motions and cross-motions for summary judgment
were filed, the district court in both cases granted summary judgment for respondents.
We have previously examined the ramifications of A.B. 820. We held that article 4, section 33 of the
Nevada Constitution forbids any increase in compensation for members of the legislature during their
natural term of office. A.B. 820 was repealed prior to the expiration of a sitting legislator's term of office.
Therefore, any increased pension benefits did not vest and there was no impairment of any vested
contract rights. See Mello v. Woodhouse, 110 Nev. 366, 872 P.2d 337 (1994).
The facts in this case are different. Both appellants are former members of the Nevada Assembly.
David D. Nicholas served four terms {eight years) in the Nevada Assembly,
terms (eight years) in the Nevada Assembly, from January 1981 through December 1988. He declined to run for
re-election in 1988. Robert G. Craddock served eight terms (sixteen years) from January 1, 1973, through
December 1988. He was defeated in his bid for re-election in 1988. Therefore, neither appellant was a sitting
member of the legislature when A.B. 820 was enacted.
Nicholas requested an application for retirement and submitted it to the Public Employees' Retirement Board
on September 15, 1989. At the time of submittal, A.B. 820 was still the law in Nevada. Pursuant to the formula,
he received $1,147.94 per month for two months, September and October 1989. Thereafter, his retirement
benefit was reduced to $284.67 per month, the pre-A.B. 820 rate.
Robert G. Craddock's effective retirement date was November 1, 1989. His first check was a pro rata amount
based on A.B. 820. His monthly benefit was $1,344.63 under the new law. After the repeal of A.B. 820, his
benefit dropped to $325.65 per month.
DISCUSSION
[Headnotes 1, 2]
The standard of review of an appeal from a summary judgment is de novo. See Maine v. Stewart, 109 Nev.
721, 726, 857 P.2d 755, 758 (1993); Walker v. American Bankers Ins., 108 Nev. 533, 536, 836 P.2d 59, 61
(1992). Additionally, [q]uestions of law are reviewed de novo. SIIS v. United Exposition Services Co., 109
Nev. 28, 30, 846 P.2d 294, 295 (1993). There is no dispute concerning the facts in this case.
We have previously recognized that the vesting of pension benefits can either be limited or absolute.
Appellants argue that before the vesting of an employee's right to receive pension benefits or retire
early, the Legislature may modify the terms and conditions of receiving such benefits without impairing
any contractual obligations. Historically, pension benefits were treated as gratuities subject to alteration,
amendment, and repeal without any constitutional ramifications. The modern and better-reasoned view
recognizes that employees accept their positions, perform their duties, and contribute to the retirement
fund in reliance upon the governmental employer's promise to pay retirement benefits and permit early
retirement if certain conditions are met. By rendering services and making contributions, an employee
acquires a limited vested right to pension benefits which may not be eliminated or substantially changed
by unilateral action of the governmental employer to the detriment of the member.
The limited vesting theory is premised on the principle that a pension is an element of compensation
and thus part of the employment contract. A pension right may not be destroyed without impairing the
contractual obligation of the public employer. However, prior to absolute vesting, pension rights are
subject to reasonable modification . . . .
Public Emp. Ret. v. Washoe Co., 96 Nev. 718, 721-22, 615 P.2d 972, 974 (1980) (citations omitted; footnote
omitted; emphasis added).
[Headnote 3]
Thus, there are limited vested rights which can be modified and absolute vested rights which cannot be
modified. Other jurisdictions have so ruled. See Pasadena Pol. Off. Ass'n v. City of Pasadena, 195 Cal. Rptr. 339
(Ct. App. 1983); LA. State Troopers v. LA. State Police, Etc., 417 So. 2d 440 (La. Ct. App. 1982); Campbell v.
Michigan Judges Retirement Board, 143 N.W.2d 755 (Mich. 1966).
[Headnotes 4-7]
The difference between limited and absolute vested rights centers around the time when the retirement
benefits have been fully earned or the date of retirement, that is, when the benefits are paid.
Until an employee has earned his retirement pay, or until the time arrives when he may retire, his
retirement pay is but an inchoate right; but when the conditions are satisfied, at that time retirement pay
becomes a vested right of which the person entitled thereto cannot be deprived; it has ripened into a full
contractual obligation.
Police Pension and Relief Board of Denver v. McPhail, 338 P.2d 694, 700 (Colo. 1959) (quoting Retirement
Board of Allegheney County v. McGovern, 174 A. 400 (Pa. 1934)). Respondent Public Employees' Retirement
Board asserts that the legislature has the authority to alter a person's retirement benefit at any time, even after
they retire. This is in direct contradiction to the position previously taken by the Board in Mello v. Woodhouse,
110 Nev. 366, 371, n.10, 872 P.2d 337, 340 (1994). In Mello, the Board acknowledged that legislators who had
already completed their term prior to the repeal of A.B. 820 would have absolutely vested under A.B. 820. An
employee's rights become absolutely vested when he retires and all conditions for his retirement benefits have
been met. That right is constitutionally protected against impairment once absolutely vested. No state may pass
a law impairing the obligation of contracts. U.S. Const. art. I, 10; Nev. Const. art. 1, 15. Public employment
contracts are within the ambit of the contract clause."
the contract clause. Public Emp. Ret., 96 Nev. at 721, 615 P.2d at 974 (citing Singer v. City of Topeka, 607
P.2d 467 (Kan. 1980)).
[Headnote 8]
Public employees perform their duties, in reliance on the state paying retirement benefits when certain
conditions are met. When those rights become absolutely vested, a contract exists between the employee and the
state which cannot be modified by unilateral action on the part of the legislature. The repeal of A.B. 820
impaired the obligation of the state to pay the increased pension benefits to these appellants.
Adopting a rule that would allow the legislature to alter pension benefits after they have absolutely vested
simply to bar these appellants from taking advantage of the short window of opportunity when A.B. 820 was the
law would undermine the validity of contractual benefits for all public employees. We are unwilling to create a
precedent that would impair thousands of employees' rights solely to prevent a few individuals from collecting
greater benefits as a result of the passage of A.B. 820.
Accordingly, we reverse the district courts' summary judgments and remand to the district courts to grant
summary judgment in favor of appellants, and to order respondent Public Employees' Retirement Board to
reinstate the retirement benefits of appellants to the amounts allowed under A.B. 820, retroactive to the date of
the repeal of A.B. 820.
1

Rose, C. J., Shearing and Becker, JJ., concur.
Young, J., dissenting:
The issue is whether Nicholas and Craddock obtained vested rights to a 300 percent increase in monthly
retirement benefits. I conclude that the district courts correctly determined that Nicholas and Craddock did not
obtain vested rights to the unearned increase. Therefore, the legislature was free to repeal A.B. 820.
Accordingly, I dissent.
Fundamentally, retirement benefits are deferred compensation for services rendered. See Public Emp. Ret. v.
Washoe Co., 96 Nev. 718, 721-22, 615 P.2d 972, 974 (1980); see also City of Las Vegas v. Ackerman, 85 Nev.
493, 501, 457 P.2d 525, 530-31 (1969) ( [a] pension paid a governmental employee . . . is a deferred portion
of the compensation earned for services rendered' ) (quoting Great American Insurance Company v. Johnson,
126 S.E.2d 92, 94 (N.C. 1962)).
__________

1
The Honorable Deborah A. Agosti, Justice, voluntarily disqualified herself from participation in the
decision of these consolidated appeals.
Employees must provide a service in order to receive this deferred compensation. Thus, employees obtain a
vested right only to deferred compensation that accumulates during their service. An employee whose
employment terminated before enactment of a statute offering additional benefits does not exchange services for
the right to the benefits. Claypool v. Wilson, 6 Cal. Rptr. 2d 77, 86 (Ct. App. 1992); see also Simpson v.
Government Emp. Retire. Sys., 363 S.E.2d 90, 94 (N.C. Ct. App. 1987) (A public employee has a right to
expect that the retirement rights bargained for in exchange for his loyalty and continued services . . . will not be
removed or diminished.) (emphasis added).
Employees do not have vested rights to additional benefits distributed after an employee's service ends. See
Pasadena Pol. Off. Ass'n v. City of Pasadena, 195 Cal. Rptr. 339, 346 (Ct. App. 1983) (these members had
completed all their years of service and retired before any COLA benefit was enacted . . . [t]hus, they had no
vested contractual right, based on the contract in effect during their employment, to continuation of the COLA
benefit) (emphasis in original).
The two year terms of Nicholas and Craddock ended November 9, 1988, the day after the 1988 general
election. See Nev. Const. art. 4, 3, cl. 1 (amended 1996) (the term of office for members of the Assembly
shall be two years from the day next after their election). A.B. 820 became effective June 23, 1989, over seven
months later. Nicholas and Craddock filed retirement paperwork with the Public Employees' Retirement Board
after A.B. 820 became effective. The majority ignores the fundamental principle that retirement benefits must be
earned, not scattered by legislative whim among the undeserving. A.B. 820 bestowed upon Nicholas and
Craddock gratuitous compensation. The majority enhances this error by disregarding the fact that Nicholas and
Craddock failed to provide service as legislators in exchange for this additional compensation. District Court
Judge Deborah A. Agosti
1
said in the trial court that Nicholas' right did not somehow magically re-vest' when
the legislation was enacted, for there was no exchange of services for benefits at that time. While the legislature
had the power to augment benefits, it also had the power to take these unearned benefits away as it did by
repealing A.B. 820. In other words, what the legislature gave, the legislature could take away.
The state legislature is within its authority to enact legislation and to amend or repeal its statutory law unless
the legislative action is specifically precluded by constitutional limitations.
__________

1
The Honorable Deborah A. Agosti, Justice, was subsequently elected to this court and voluntarily
disqualified herself from participating in this matter.
County of Clark v. Buckwalter, 115 Nev. 58, 974 P.2d 1162, 1167 (1999) (Maupin, J., concurring). As the
majority points out, the Contract Clause of the Nevada and United States Constitutions only constitutionally
protect[s] against impairment once absolutely vested. See U.S. Const. art. I, 10; Nev. Const. art. 1, 15.
Therefore, I agree with the majority to the extent that vested contract rights are constitutionally protected.
However, the Contract Clause is inapplicable in this case because Nicholas and Craddock did not obtain vested
contract rights to the additional benefits provided by A.B. 820. Nicholas' and Craddock's contract rights vested
before A.B. 820, not after its passage. Consequently, I conclude that Nicholas' and Craddock's vested rights are
restricted to the pre-A.B. 820 retirement benefit rates.
Additionally, it is important to note that Nicholas and Craddock made a calculated effort to exploit the
passage of A.B. 820. At the time the legislature enacted A.B. 820, Nicholas was a paid lobbyist in the Nevada
Legislature and actually attended hearings on A.B. 820. Nicholas also discussed the bill with State Senator
Donald Mello, the moving force behind the benefit increase. Nicholas and Craddock carefully timed the filing of
their retirement papers in their quest for an unwarranted windfall. Addressing Craddock's claim in the Eighth
Judicial District Court, Judge Gerard Bongiovanni succinctly noted, Calculated reliance is not detrimental
reliance.
Under A.B. 820, this windfall amounts to an extra $863.27 a month for Nicholas and an extra $1,018.98 a
month for Craddock for the rest of their lives. Over twenty-five years, Nicholas and Craddock would jointly
receive an impressive $564,675.00 over what they would have received at the pre-A.B. 820 retirement rate.
2

The majority fears that allowing the legislature to alter pension benefits would undermine the validity of
contractual benefits for all public employees. An employee does not have a vested right to an additional
retirement benefit which is granted after the employee's service has ended. Otherwise, in the unlikely event that
the legislature decided to increase the retirement benefits for all state employees by 300
percent after their service to the State was over, could it be seriously argued that the
legislature would not have the power to repeal such a statute?
__________

2
It warrants mentioning that the legislature itself came to the conclusion that the citizens of Nevada deserve
better. Initially, the legislature enacted A.B. 820 over the governor's veto on a near unanimous vote. However,
after five months of public outcry, the legislature reversed course in a special session and unanimously voted to
repeal A.B. 820, thereby ending this unprecedented raid on the public treasury. As former Governor Mike
O'Callaghan noted in an editorial, Everybody in Nevada knew that the provisions of A.B. 820 were outrageous
and wrong. Even the people who voted for it knew it was wrong . . . [but] greed overcame common sense and the
responsibility candidates promise voters. Mike O'Callaghan, Where I StandMike O'Callaghan: Lingering
odor from 89, Las Vegas Sun, Sept. 28, 1999, at 7A.
that the legislature decided to increase the retirement benefits for all state employees by 300 percent after their
service to the State was over, could it be seriously argued that the legislature would not have the power to repeal
such a statute?
For the foregoing reasons, I conclude that Nicholas and Craddock did not obtain vested rights to higher
monthly benefits. The legislature enacted this extraordinary increase only after Nicholas and Craddock ended
their legislative service. The majority's decision essentially rewards Nicholas and Craddock with undeserved
compensation for which the citizens of Nevada received nothing in return. Therefore, I dissent.
Maupin, J., dissenting:
The legislature enacted former A.B. 820 after appellants' public service as legislators was concluded. They
may not, as a matter of law, claim to have relied upon the pension increase as a condition of their respective
public services.
It is reliance that gives life to the doctrine that is most eloquently articulated by the majority opinion. This
completely unique situation does not implicate that doctrine. The legislature intended to void the pension
increase in its entirety and appellants lost nothing in the process.
I further agree with Justice Young that no constitutional violation of appellants' vested rights occurred.
____________
116 Nev. 48, 48 (2000) Mazzan v. Warden
JOHN FRANCIS MAZZAN, Appellant, v. WARDEN, ELY STATE PRISON, E. K. McDANIEL, Respondent.
No. 30998
January 27, 2000 993 P.2d 25
Appeal from an order of the district court dismissing a postconviction petition for a writ of habeas corpus.
Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Following conviction for murder and imposition of a death sentence, affirmed at 103 Nev. 69, 733 P.2d 850
(1987), and following denial of his petition for post-conviction relief, affirmed at 105 Nev. 745, 783 P.2d 430
(1989), and denial of his first petition for a writ of habeas corpus, affirmed at 112 Nev. 838, 921 P.2d 920
(1996), defendant again petitioned for a writ of habeas corpus. The district court denied the writ, and defendant
appealed. The supreme court held that prosecutors violated Brady by failing to disclose police reports.
JoNell Thomas, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Gary H.
Hatlestad, Chief Appellate Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Determining whether the state adequately disclosed information under Brady requires consideration of both factual circumstances
and legal issues, and thus, supreme court reviews de novo the district court's decision.
2. Constitutional Law; Criminal Law.
Brady and its progeny require a prosecutor to disclose evidence favorable to the defense when that evidence is material either to
guilt or to punishment. Failure to do so is a violation of due process regardless of the prosecutor's motive. U.S. Const. amend. 14.
3. Criminal Law.
Where the state fails to provide evidence which the defense did not request or requested generally, it is constitutional error if the
omitted evidence creates a reasonable doubt which did not otherwise exist. In other words, evidence is material if there is a
reasonable probability that the result would have been different if the evidence had been disclosed. U.S. Const. amend. 14.
4. Criminal Law.
Materiality, for purpose of a Brady claim, does not require demonstration by a preponderance that disclosure of the evidence
would have resulted in acquittal, nor is it a sufficiency of the evidence test. A defendant need not show that after discounting the
inculpatory evidence in light of the undisclosed evidence there would not have been enough left to convict. U.S. Const. amend. 14.
5. Criminal Law.
Reasonable probability of a different outcome, for purposes of a Brady claim, is shown when the nondisclosure undermines
confidence in the outcome of the trial. U.S. Const. amend. 14.
6. Criminal Law.
After a specific request for evidence, a Brady violation is material if there is a reasonable possibility that the omitted evidence
would have affected the outcome. U.S. Const. amend. 14.
7. Criminal Law.
In determining materiality of undisclosed evidence for purpose of a Brady claim, the evidence must be considered collectively, not
item by item. The character of a piece of evidence as favorable will often turn on the context of the existing or potential evidentiary
record. U.S. Const. amend. 14.
8. Criminal Law.
For purpose of a Brady claim, the prosecutor is responsible for determining whether evidence is material and should be disclosed.
U.S. Const. amend. 14.
Due process does not only require the disclosure of exculpatory evidence, but rather, evidence also must be disclosed if it
provides grounds for the defense to attack the reliability, thoroughness, and good faith of the police investigation, to
impeach the credibility of the state's witnesses,
faith of the police investigation, to impeach the credibility of the state's witnesses, or to bolster the defense case against prosecutorial
attacks. U.S. Const. amend. 14.
10. Criminal Law.
Discovery in a criminal case is not limited to investigative leads or reports that are admissible in evidence. Evidence need not be
independently admissible to be material.
11. Criminal Law.
There are three components to a Brady violation: the evidence at issue is favorable to the accused; the evidence was withheld by
the state, either intentionally or inadvertently; and prejudice ensued, i.e., the evidence was material. U.S. Const. amend. 14.
12. Habeas Corpus.
Cause and prejudice, which defendant bringing a successive petition for habeas relief was required to show to avoid procedural
default, paralleled two of the three components of his Brady claim. If defendant proved that the state withheld evidence, that would
constitute cause for not presenting his claim earlier, and if he proved that the withheld evidence was material under Brady, that would
establish actual prejudice. NRS 34.810(3).
13. Criminal Law.
Prosecutors violated Brady, despite any information provided orally, by failing to disclose to murder defendant police reports
which provided support for a defense that someone else murdered the victim because of his drug dealing, and provided a basis to
impeach the thoroughness of the state's investigation. Reports indicated that one suspected perpetrator was in the city on the day of the
murder, trial counsel could not have questioned the authenticity of signatures on two alibi documents without seeing them, and the
reports cast another third party in a sinister light. U.S. Const. amend. 14.
14. Criminal Law.
Prosecutors' assessments that police reports were unimportant did not satisfy Brady. U.S. Const. amend. 14.
15. Criminal Law.
District court failed to apply the proper standard in assessing the materiality of the undisclosed evidence for purpose of a Brady
claim when the court considered the evidence in isolated bits and found that many of those bits were not exculpatory. The proper
question was whether the evidence was favorable, which often turned on the context of the existing or potential evidentiary record,
and undisclosed evidence had to be considered collectively, not item by item. U.S. Const. amend. 14.
16. Criminal Law.
Prosecutor's refusal to turn police reports over to murder defendant's post-trial counsel was a Brady violation in its own right. U.S.
Const. amend. 14.
17. Criminal Law.
When the state fails to disclose evidence which the defense did not request or requested generally, it is constitutional error if the
omitted evidence creates a reasonable doubt, i.e., if there is a reasonable probability that the result would have been different if the
evidence had been disclosed. A reasonable probability is shown when the nondisclosure undermines confidence in the outcome of
the trial. U.S. Const. amend. 14.
18. Habeas Corpus.
Supreme court would not consider on appeal the claims of a successive habeas petitioner where the petitioner did not discuss their
merits or address whether they were procedurally barred.
19. Criminal Law.
Contentions unsupported by specific argument or authority should be summarily rejected on appeal.
20. Habeas Corpus.
District court judge's alleged failure to respond to comments made by the prosecutor in another case which were critical of the
constitutional rights provided to criminal defendants was not an effective adoption of the prosecutor's comments, so as to warrant
remand of a habeas proceeding to a different judge.
OPINION
Per Curiam:
In 1979, appellant John Francis Mazzan was convicted of first-degree murder and sentenced to death in
the Second Judicial District Court. The state's theory was that he stabbed Richard Minor to death in Minor's
home and then took money and drugs from the home. On appeal, this court affirmed Mazzan's conviction
but reversed his sentence. Mazzan v. State (Mazzan I), 100 Nev. 74, 675 P.2d 409 (1984). After a second
penalty hearing, Mazzan again received the death penalty, and this court affirmed that sentence on the
second appeal. Mazzan v. State (Mazzan II), 103 Nev. 69, 733 P.2d 850 (1987). Mazzan petitioned for
post-conviction relief, the petition was denied, and this court affirmed the denial. Mazzan v. State
(Mazzan III), 105 Nev. 745, 783 P.2d 430 (1989).
Mazzan next petitioned for post-conviction habeas relief. After the First Judicial District Court
summarily denied the petition, Mazzan appealed, and this court remanded the matter for
reconsideration. After being transferred to Ely State Prison, Mazzan moved for a change of venue to the
Seventh Judicial District Court. The district court denied the motion; this court dismissed Mazzan's
interlocutory appeal of the denial without reaching the merits. Mazzan v. State (Mazzan IV), 109 Nev.
1067, 863 P.2d 1035 (1993).
The district court then dismissed the habeas petition as procedurally barred. This court affirmed.
Mazzan v. State (Mazzan V), 112 Nev. 838, 921 P.2d 920 (1996). Mazzan petitioned for rehearing,
asserting that he had discovered that the state had withheld exculpatory police reports from him before
his trial. This court denied rehearing, concluding that his remedy was to file another habeas petition in
the district court.
habeas petition in the district court. Mazzan v. State, Docket No. 26985 (Order Denying Rehearing, November
8, 1996). Mazzan did so.
After an evidentiary hearing, the district court entered an order denying the habeas petition. The court
concluded that although the police reports were material and exculpatory and were probably not provided to
Mazzan, prosecutors had orally communicated to his defense counsel any information required by Brady v.
Maryland, 373 U.S. 83 (1963). The court's order did not address other claims Mazzan had raised in his petition.
Mazzan appeals.
FACTS
Facts disclosed at earlier proceedings
Mazzan testified at trial to the following. He moved to Reno in April 1978 and worked as a hairdresser while
his wife worked in Las Vegas as a dancer. Mazzan and his friends used marijuana and cocaine, and he obtained
cocaine from April Barber, a prostitute at Mustang Ranch. He became friends with Barber's boyfriend, Richard
Minor, who supplied him with marijuana.
Mazzan spent the evening of Wednesday, December 20, 1978, at Minor's residence. The two smoked
marijuana, snorted cocaine, and taped albums. Sometime in the early morning, Mazzan tried to leave, but his
car would not start. Minor let him spend the night, and he bedded down behind Minor's couch and slept.
Mazzan awoke to the sound of a scuffle in the kitchen and saw Minor struggling with someone. The person left
through the door, and Mazzan heard two people running and then a car driving away. Minor had blood all over
him. Mazzan was confused and shocked; he stepped out the door, could not see anything, and went back inside.
Minor was leaning against the wall and then collapsed and died. Mazzan left and did not report the crime
because he was afraid that he would be implicated in the drug use and might be in danger from the perpetrators
of the crime if they found out he knew anything. He was sure Minor was already dead, and he expected that
Minor's younger brother would arrive that morning and discover Minor. When Mazzan returned home, he
cleaned his shoes and washed his hands. He had his clothes laundered. When police later questioned him, he
told them he had thrown away a pair of running shoes about a month earlier. The state provided evidence that
that same type of running shoe had a pattern resembling bloody footprints in the kitchen at the crime scene.
Minor's father, a justice of the peace, discovered his son's body on Friday, December 22, 1978, the day after
the killing. On Wednesday he had gone to his son's residence. Mazzan was present, and Minor had introduced
him as my friend Jack. (Mazzan was called both John and Jack.)
was called both John and Jack.) Minor's younger brother also saw Mazzan at the residence Wednesday evening.
He had met Mazzan a few times before, and Minor and Mazzan appeared to be friends. A little past midnight
that same night, John Sullivan saw Mazzan at Minor's. Sullivan bought a quarter ounce of Hawaiian marijuana
from Minor for $65.00 and left.
Jim Shallman, a friend of Minor's, testified that Minor had traveled to Hawaii, evidently not long before his
death, and returned with about two pounds of marijuana. Shallman saw Minor with $6,000.00 in cash in
mid-October 1978. He had seen Mazzan with Minor a few times, and the two appeared to be friends.
At the crime scene, investigators found a blanket with several cuts in it and blood on it. The residence was
small, a converted garage. An investigator theorized that Minor was first attacked with a knife while lying on the
couch with the blanket over him and that he then went into the kitchen toward the door and refrigerator. Minor
was found on the floor near the couch. Prints left in blood by a kind of sports shoe were found on the kitchen
floor and the blanket; only one print was distinct. No identifiable fingerprints were found. Most of the blood was
found in the kitchen and where the body was lying. A smear of blood was later found on the inside of the driver's
side window of Mazzan's car.
Minor was stabbed fifteen times, including in the heart and lungs. There was no sign of forced entry to the
residence. The prosecution theorized that he was killed for his money and drugs. However, other than the $65.00
received by Minor that night, there was no clear evidence of how much money or drugs Minor had the night he
was killed.
Two days after the murder, Mazzan flew to Las Vegas to see his wife for the holidays. Las Vegas police
contacted him, informed him he was a suspect in Minor's killing, and told him he should contact the police in
Reno when he returned there. He volunteered no information about Minor's death.
Mazzan returned to Reno on December 26, 1978, and went to the police station the next morning around
11:30 a.m. He was questioned for about twelve hours and then arrested for murder. Mazzan first told the police
that on the night in question, he had left Minor's place around midnight and did not see the murder. When told
that blood had been found in his vehicle, Mazzan admitted that he had been present when Minor was killed. The
police checked and found no apparent bruises on Mazzan. (Minor had been about six feet four inches tall and
weighed about two hundred fifteen pounds.) Over the next few days, the police obtained a number of statements
from Mazzan that showed some discrepancies, e.g., in regard to the position that he left Minor in, the shoes
which he had worn at Minor's residence, and what he had done immediately after he left
there.
the shoes which he had worn at Minor's residence, and what he had done immediately after he left there.
Mazzan's trial counsel, Larry McNabney, later stipulated to the voluntariness of these statements.
On January 3, 1979, a week after Mazzan's arrest, a garbage worker found a bloody coat belonging to
Mazzan and a purse and bloody clothes belonging to April Barber, Minor's girlfriend, in a trash can not far from
Mazzan's home. A key to a lock at Minor's residence was in Barber's purse. Barber had been missing for about a
month. The evidence showed that these items were placed in the trash after Mazzan had been arrested and
incarcerated. On February 13, 1979, the state filed an amended information alleging that Mazzan either
murdered Minor or aided and abetted in his murder.
During trial, as the state prepared to rest, District Attorney Cal Dunlap moved to block any inquiry by the
defense into either the police investigation of Minor's drug connections or a statement by Minor's sister. The
sister had informed police that Minor had told her not long before his death that he was in danger due to his drug
dealings. Dunlap argued that it was all inadmissible hearsay evidence. McNabney countered that the defense
case depended on showing that after Mazzan was in custody, the police went to Ohio, Indiana, and Hawaii and
continued their investigation. The defense theory was that Minor was involved with drug traffickers who
murdered him and left Mazzan holding the bag. And, if we can't get into that, we might as well end the whole
trial right here. The district court asked where Minor's sister was. McNabney said, I don't know; I didn't even
know about this sister's statement until I saw it in the police report today. I don't know where she is. That's the
first I ever knew of it. The court considered the sister's statement admissible but concluded that the fact that
the police were following leads around the country was not relevant. As a result, McNabney was not able to
elicit any evidence other than that the police had investigated in the Midwest after Mazzan was in custody.
After the court's ruling, the state called Minor's sister, Cynthia Shelley, to testify. About two weeks before his
death, Minor told her and her husband that he was afraid, that he had been involved in some sort of dealing, and
he wanted to get out, and he was afraid. On cross-examination, McNabney asked Shelley who her husband was
and where he was. She told him, He is outside the door. The state then called the husband, who testified that
Minor was concerned that his involvement with drugs had brought him to the point where he was in trouble
with the police.
The state then rested. Mazzan testified in his own defense, as discussed above, and called several character
witnesses who testified to his nonviolent nature. In closing argument, Dunlap dismissed the defense's suggestion
that Minor was killed over some drug deal, telling the jury several times that police had uncovered no evidence
of such a possibility.
The jury found Mazzan guilty of first-degree murder and sentenced him to death. McNabney filed a notice of
appeal and withdrew as Mazzan's counsel. The district court appointed the Washoe County Public Defender
(WCPD) to represent Mazzan on appeal.
In March 1981, about a year and a half after the verdict, Mazzan's new counsel, Patrick Flanagan, moved the
district court for acquittal, on the basis of insufficient evidence, or for a new trial, based on newly discovered
evidence that April Barber had been murdered. Barber's skeletal remains were found in November 1979 and
indicated that, like Minor, she had been stabbed to death. Flanagan argued that Barber and Minor were murdered
by the same persons, that Mazzan could not have murdered Barber, and thus that Mazzan had not murdered
Minor.
In April 1981, Flanagan moved to inspect and copy any records the state had of Minor's drug dealings. At a
hearing on the motion in May 1981, Flanagan argued that the identity of Minor's drug contacts was critical to
determining who murdered Minor and Barber. Dunlap opposed the motion. He asserted that the matter of
Minor's drug dealings was thoroughly litigated and argued to the jury. He also asserted that the evidence
regarding Minor's drug dealings contained nothing exculpatory. Dunlap told the district court that ordinarily he
would not object to discovery of the material; however, if Mazzan's appeal in this case was successful, he
intended to charge Mazzan with Barber's murder and therefore did not want to allow a fishing expedition
through his files. Pursuant to the district court's request, Dunlap said that he would provide his entire file to the
court for in camera review. In March 1982, at the start of the hearing on Mazzan's motions for acquittal or a new
trial, the district court announced that it had considered a series of police reports provided by Dunlap and found
nothing exculpatory.
During the hearing on Mazzan's motions, Reno Police Department Detective Teglia testified. Flanagan asked
Teglia if during his Midwest investigation he had developed any suspects that might have been involved in
Minor's murder. Teglia replied, No. The court denied the motions. The court stated that although it had
thought Mazzan was innocent, it did not feel the evidence justified advising the jury to acquit. It concluded that
the new evidence of Barber's remains did not exculpate Mazzan.
On appeal, this court affirmed Mazzan's conviction; however, it reversed the sentence because of ineffective
assistance of counsel at the penalty hearing. Mazzan I, 100 Nev. 74, 675 P.2d 409.
The second penalty hearing occurred in February 1985. McNabney again represented Mazzan. The jury
returned a verdict of death, finding the murder occurred in the course of burglary and robbery. McNabney filed a
notice of appeal and a motion to withdraw as counsel. The district court again appointed the WCPD to represent
Mazzan on appeal. This court affirmed the death sentence. Mazzan II, 103 Nev. 69, 733 P.2d 850.
Mazzan filed a petition for post-conviction relief in May 1987. In December 1987, the district court
dismissed it, and on appeal, this court affirmed. Mazzan III, 105 Nev. 745, 783 P.2d 430.
In June 1988, Mazzan filed for post-conviction habeas relief. After the district court summarily denied relief,
this court remanded to allow Mazzan an opportunity to show cause for his failure to raise his claims earlier. In
February 1995, the district court again denied the petition. This court affirmed in 1996. Mazzan V, 112 Nev.
838, 921 P.2d 920.
Mazzan petitioned for rehearing, asserting that he had discovered that the state had withheld exculpatory
information from him before his trial. In denying rehearing, this court stated:
If appellant's allegations are true, then it appears that appellant is entitled to a new trial. Appellant's
allegations require factual determinations which are best addressed in the district court. If true, appellant's
claim that the state withheld exculpatory police reports demonstrates good cause and prejudice to excuse
a procedural bar to the filing of a new petition for a writ of habeas corpus. We conclude that appellant's
remedy is to now file a petition for a writ of habeas corpus in the Second Judicial District Court.
Mazzan v. State, Docket No. 26985 (Order Denying Rehearing, November 8, 1996) (citations omitted).
Facts disclosed after the filing of the instant petition
Mazzan filed his instant petition seeking habeas relief in the district court in November 1996 and a
supplement to his petition in May 1997. Mazzan's primary claim, briefly put, was the following. Upon receiving
the police file on his case in 1996, he discovered that after Minor was murdered, police investigators uncovered
information that Minor had been dealing drugs with Harry Douglas Warmbier and Mark Siffin. Minor had
grown up with Warmbier in the Midwest. Warmbier and Siffin did extensive drug trafficking and were under
investigation by the Drug Enforcement Agency (DEA) at the time. Warmbier was enrolled at Indiana
University but had actually hired an associate, Robert Carmichael, to impersonate him and
attend classes for him.
at Indiana University but had actually hired an associate, Robert Carmichael, to impersonate him and attend
classes for him. There was evidence that Warmbier and Siffin might have been in Reno at the time of Minor's
murder. Through his attorney, Warmbier claimed to have an alibi and refused to be interviewed by Reno
detectives. Siffin could not be contacted at all because he had dropped out of sight since the time of Minor's
murder. Mills Lane, the initial prosecutor in this case, asked Warmbier's attorney to send documentation to back
up the alibi. The documents sent in response were of questionable reliability, including unsworn statements by
Warmbier's girlfriend, Dorothy Nyland, and by Carmichael's girlfriend. Carmichael not only impersonated
Warmbier at college but was linked to Warmbier's drug activities. The following sets forth in more detail the
information which the prosecution possessed.
Reno Police Detectives Teglia and Penegor were the lead investigators in the Minor homicide. A report by
Penegor in January 1979 included the following information. Three days after the murder, Penegor telephoned
Nola Minor, the victim's mother, in Ohio. She stated that Minor had called her on November 26, 1978 (about
four weeks before his murder), from San Francisco. He told her that he was with two other people, apparently
Doug Warmbier and a Mark whose last name she did not know. She knew that Doug and Mark had come to
Reno, and the three had driven to San Francisco in Minor's van. The report noted, Mark could be a Mark
Siffin. Nola Minor also received a call from Minor on December 2, 1978. He was in Hawaii, apparently with
Warmbier and Mark. On December 8, 1978, she called and spoke to her son in Reno. According to the report, he
told her that after he returned to Reno, April Barber
had left him and was not at the residence. He was concerned because she had a car and a door key to his
residence. Upon returning to the residence he found a burnt $20 bill that April had left for him, unknown
what significance this was at this time.
Nola Minor later learned from Tim Beck, a friend of her son's and Warmbier's, that Warmbier was supposed to
be in the Reno area on December 20 or 21, 1978, to contact her son. (The murder occurred early in the morning
on Thursday, December 21, 1978.)
Warmbier was enrolled at Indiana University (IU). Reno police asked IU police to contact Warmbier and
received an IU police officer's report with the following information. On January 18, 1979, the officer tried to
interview Warmbier and discovered that a person was impersonating Warmbier. The person identified him self
as Robert Carmichael, admitted that he was paid to attend classes for Warmbier
self as Robert Carmichael, admitted that he was paid to attend classes for Warmbier, and telephoned Warmbier's
attorney, Ira Zinman. The next day the officer met with Zinman, Warmbier, and Nyland, Warmbier's girlfriend.
Warmbier admitted that he knew Minor but tried to give the impression that they were not good friends.
Warmbier stated that he had learned of Minor's death on the morning of December 22, 1978, when Nyland
called Minor's residence and police answered. Warmbier also stated that he last visited Reno about three weeks
before Christmas, and he and Minor flew from San Francisco to Hawaii. Minor had just broken up with Barber,
whom Minor described as a hooker, prostitute, and extortionist. Warmbier said that he knew several people
named Mark, but only he and Minor had gone to Hawaii. Warmbier said that he was in Bloomington, Indiana,
from December 8 until just before Christmas 1978.
Police in Reno also obtained DEA investigative reports. One report covered suspected drug smuggling and
trafficking in Bloomington, Indiana, in July 1978. Among other things, it noted suspicious activities by Siffin
and Carmichael at an airport, carrying items to and from an airplane, and vehicular traffic between Siffin's
residence and that of Nyland and Warmbier. Another DEA report stated that Siffin is suspected of being a
major cocaine trafficker.
Reno Police Detective Captain Ken Pulver spoke to reporters on January 25, 1979. The Nevada State Journal
reported that Pulver said drug trafficking was a factor in Minor's murder and he would send officers to San
Francisco, Ohio, Indiana and perhaps Hawaii to interview persons on the unsolved crime. The Reno Evening
Gazette carried a similar article. The next day, prosecutor Mills Lane addressed a letter to Capt. Pulver, stating:
[T]he Mazzan case is a tough one at best. We're going to use all the facts and investigation to our best
advantage, of course, keeping sound ethics and good police conduct in mind. I do not want any of our
investigation or any of the facts that we have develop[e]d released to the press unless the same is
discussed with me. The more the defense knows about our case, the more they are going to be able to try
and work around it. In Nevada we do not have to give out police reports, and if the press knows what's in
those reports it's the same as turning them over to the defense.
Reno Police Sergeant Rodney Stock, who was an initial investigator of the murder, submitted a report on
February 5, 1979, noting among other things the following. In the original investigation it was learned that
Harry Douglas Warmbier and a man named Mark were coming to Reno someti[me] around the twenty-first or
twenty-second of December to meet [Minor] and possibly go on to Hawaii."
first or twenty-second of December to meet [Minor] and possibly go on to Hawaii. Mark Siffin apparently
went underground sometime prior to the Christmas holidays and has not been seen since according to the
Monroe County [Indiana] Sheriff's Department, IU Police, and apparently the DEA Task Force working this
particular case.
On February 2, 1979, after Mazzan had been in custody for more than five weeks, an interoffice memo by
Det. Teglia stated that investigators had information
which indicates that there is a direct connection between Minor's death and certain persons/activities in
the Midwest.
Certain of Minor's activities immediately prior to his death have involved people from the Cincinnati
and Bloomington, Ind. area. Also, numerous phone calls made by Minor to associates in these two cities
and in adjacent areas seem to lend credence to information received from DEA that Minor and his
associates were in fact involved in a major narcotics distribution ring.
It is believed that Minor's death, and the presumed death of April Barber are directly connected to
these narcotics activities. It is also believed that direct contact with the other persons believed to be
involved will provide information which will assist in establishing motive, and information vital to the
prosecution.
About a week later, Dets. Teglia and Penegor traveled to the Midwest to investigate leads there.
The detectives interviewed Michele Cameron Abshire in Ohio, who told them that she and Minor had known
each other for about seven years and at one time planned on marrying. Minor had worked for Warmbier,
transporting marijuana. Minor dealt in only small amounts on consignment. A month or two before his death,
Minor told Abshire that he and April Barber, who had money, planned to make cash deals. Once Mark Siffin
had slipped some cocaine on Minor without his knowing, and Minor was highly upset because of it. Abshire
heard, apparently from Warmbier, Tim Beck, and Glenn Peterson (a Reno friend of Minor's), that Warmbier and
someone else were supposed to meet Minor in Reno on Thursday (the day of the murder), but Minor failed to
meet them at the airport; they may have gone to Minor's residence, found his body, and left. Abshire suspected
that Barber and Minor were killed because Barber was extorting money from someone. (Barber was missing at
the time; her body was discovered later.)
Another police report shows that the detectives also contacted Warmbier's attorney, Zinman, in Indiana and
asked to interview Warmbier.
Warmbier. Zinman would not allow an interview but suggested a polygraph examination based on questions
made up by Zinman. This was unacceptable to the detectives. They telephoned Warmbier, but he refused to be
interviewed.
Another report summarizes the detectives' interview in Ohio of Tim Beck, Minor's friend since childhood.
The day before the murder, Minor telephoned and told Beck that after Minor had returned from Hawaii in early
December, he found that Barber was gone from his residence but her clothing and personal belongings were still
there. Minor also found a burnt twenty-dollar bill, the significance of which he did not understand. After the
murder, Warmbier told Beck that Warmbier flew into Reno early on Thursday, December 21, 1978. Minor failed
to pick Warmbier up at the airport so Warmbier took a taxi and arrived at Minor's after police had discovered
the body. The report states that Warmbier may have been accompanied by Mark Siffin. It also notes that police
did not discover Minor's body until December 22, 1978, not December 21 as Warmbier said to Beck. Also, the
time that Warmbier said he arrived in Reno did not correspond to flight schedules from the east, but could
correspond to flights out of San Francisco or central California.
Meanwhile, investigators in Reno interviewed Glenn Peterson, a friend of Minor's. Peterson said that Minor
had talked about his drug connections from back east but never mentioned names. Minor intended to meet the
boys from back east on Thursday, December 21 (the day of the murder) about the purchase of Thai sticks (a
potent form of marijuana). Either they would come to Reno, or Minor would go to San Francisco. Minor was
close to April Barber, but Peterson had bad vibes about her. She had a lot of money and cocaine, and Minor
seemed to change after he met her and seemed on edge after she left.
James Shallman, who had worked with Minor, was also interviewed in Reno. Shallman told an investigator
that Minor had said he had a big shipment of Thai sticks coming in and that he
was leaving Wednesday, Thursday or Friday driving the van, and this guy was coming out or already
here. This guy supposedly knew how to handle Hawaiian agricultural inspections by switching
suitcases. Richard Minor had stated that he had been burned by this guy but respected him and
thought that he was an asshole.
. . . .
[M]ost of the money Richard Minor had belonged to the guy. [Shallman] then used the phrase Mr.
Big stating that this Mr. Big had made lots of money traffic[k]ing nar
cotics. . . . Minor said cops in Bloomington [Indiana] had come down hard and affected Mr. Big.
During the fall of 1978, Minor apparently owed this person about $6,000.00 for fronting drugs to him; Shallman
did not know if or when Minor had paid the debt. Investigators also learned that Minor had told his sister, Patti
Ison, about a debt. Sometime after Minor's death, Ison wrote her father that [f]ive or six months ago he [Minor]
asked me if I could loan him some money, he owed it to someone and had to pay them back.
On February 22, 1979, after returning from the Midwest, Dets. Teglia and Penegor wrote an interoffice
memo to their captain. They stated that they had gathered information that Warmbier was in Reno around the
time Minor's body was discovered, that Minor was heavily involved in drug trafficking, and that direct contact
with Mr. Warmbier was of extreme importance in resolving this portion of the investigation. They detailed how
Warmbier and his attorney had prevented such contact. Since they did not have enough information to formally
charge Mr. Warmbier as a princip[al] or accessory in the murder, this aspect of the investigation could not be
pursued any further. They advised DEA and Indiana investigators of the situation, and one investigator
indicated that he would continue to investigate Warmbier and Siffin to try to obtain information useful to the
murder investigation. Teglia and Penegor stated that earlier the investigation had reached a complete
standstill, but on their Midwest trip a number of new areas were opened up which are assisting investigators in
establishing a more viable case for the prosecution.
The same day that the detectives reported how Warmbier's attorney, Zinman, had thwarted their efforts to
contact Warmbier, prosecutor Mills Lane wrote Zinman to thank him for agreeing to furnish us with certain
information to alibi your client, Mr. Warmbier. Two months later, on May 1, 1979, Zinman wrote to Lane and
sent him two receipts and two handwritten letters. A letter by Dorothy Nyland stated that she was with Warmbier
in Bloomington, Indiana, on the 20th and 21st and that she had verified this with shopping receipts. Debra
Russell's letter stated that Warmbier had borrowed the car of her roommate, R. Carmichael, on December 20
and returned it about 6:30 that evening. It appears that Lane did not know that Nyland was Warmbier's girlfriend
or that Robert Carmichael was the person that Warmbier paid to impersonate him at Indiana University. In a
letter dated May 4, 1979, Lane told Zinman that defense counsel McNabney has advised me that he would not
contest the fact that your client was in Bloomington if I could provide documentation to that. Because of the
documents provided by Zinman,
by Zinman, Lane did not believe that he would need to subpoena anyone regarding Warmbier's alibi.
On February 14, 1979, Mazzan's trial counsel, McNabney, had moved for discovery of any material which
the state knew or might learn of which is exculpatory in nature or favorable to the accused or which may lead to
exculpatory material. In March 1979, he moved for discovery of the state's witnesses' statements. Lane opposed
the motion, and it was denied. Mazzan was tried and convicted in October 1979.
Almost seventeen years later, in July 1996, Michael Hodge, an investigator for the Nevada State Public
Defender, subpoenaed the police file in Mazzan's case. The Reno City Attorney's Office eventually approved
release of the file, containing 500 to 700 documents, but Hodge was told that he would not receive any
confidential reports; to obtain those, he had to contact the District Attorney's Office. Nevertheless, Hodge's
inspection of the file uncovered the police reports discussed above, some of them marked confidential.
After Mazzan filed his instant petition for habeas relief, he moved the district court to bifurcate the issues
raised in the petition, to consider first his claim that he was not provided with exculpatory evidence and, if
necessary, to consider his other claims later. The state did not object.
During a deposition in May 1997, former police sergeant Stock testified as follows. Stock was a supervisor
in the detective division of the Reno Police Department and worked on the investigation of Minor's murder for
about three weeks in early 1979. He believed that the investigation had not eliminated all possible suspects.
Teglia's and Penegor's investigation of Warmbier and Siffin as suspects in Minor's murder had been frustrated. I
still think to this day that somebody back there [in the Midwest] has withheld information. Mazzan could have
been in the wrong place at the wrong time. He also might have been an accessory, but we may have more
people involved in the actual murder. When the state asked if it was true that the police department in Reno
had a man in custody and simply left it at that, Stock replied, Yeah. It's probably true. But then again, it's up to
the District Attorney's Office, which the police have no control over. In a capital case, Stock felt that you
would have to follow up, do everything you could to attempt to find [someone like Warmbier] and interview him
or whatever, try and get additional evidence like, say, a plane ticket or passenger list or whatever to verify if he
was here or not. Stock thought the police did as much as they could under the circumstances. . . . [Y]ou're
talking time, manpower, and money.
On May 28 and 30, 1997, the district court held an evidentiary hearing, and a number of witnesses testified.
Former detective Teglia testified that Warmbier was initially a suspect in Minor's murder, but eventually the
investigation focused solely on Mazzan. Mazzan's counsel asked Teglia if he had specific evidence that
eliminated Mr. Warmbier and Mr. Siffin as suspects, and Teglia replied, We had specific lack of evidence that
allowed for the possibility of anybody else but Mr. Mazzan being in the residence at the time the homicide
occurred. Evidence showed that other people were involved after the fact, but this was not relevant to who
committed the killing. The police never determined whether or not Warmbier or Siffin was in Reno around the
time of the murder.
Mills Lane, the initial prosecutor, testified. Lane usually did not allow defense attorneys to look at his case
file, and if he did not trust an attorney, he gave the attorney nothing more than was required by law. He did not
copy reports for defense attorneys; he would give a synopsis of any Brady material. Lane remembered talking
to McNabney about Warmbier, but McNabney said that he was not going to claim that Warmbier committed the
murder. After that, Lane did not consider Warmbier pertinent. He saw no nexus between Warmbier and the
murder. When asked about the fact that Warmbier may have been here in Reno on or about the day of the
murder, Lane responded, On or about doesn't do very much for me. If you say he was in Mr. Minor's house the
night he was killed, that would be something different. Mazzan's counsel showed Lane the alibi documents, and
Lane agreed that the two Dorothy Nyland signatures (one on a letter and the other on a receipt) slanted in
different directions. He also conceded that it would bother him if he found out that Warmbier now admitted
that he had been in Reno, contrary to the alibi. Lane was not sure if he told McNabney that the DEA was
investigating Warmbier and Siffin. Lane did not remember information that Warmbier and a man named Mark
were coming to Reno to meet Minor at the time of the murder, but he was satisfied that he would have given
such information to McNabney.
Cal Dunlap, the trial prosecutor, testified. Dunlap was not sure if he provided McNabney with an open file,
and he did not recall giving any specific documents to McNabney. Whether he gave McNabney documents or
just spoke with him, he knew that McNabney knew a lot of that information that's in the [police reports].
McNabney didn't seem the least bit interested in following up on these because . . . he didn't believe that there
was any real substance and any need to pursue these leads. When asked if he told McNabney that at least one
witness said that Mr. Wambier was in town on the day of the murder,"
Mr. Warmbier was in town on the day of the murder, Dunlap answered that he had no specific recollection, but
[i]f I knew, I probably did. Dunlap answered similarly regarding whether he shared other specific facts. When
Mazzan's post-trial attorney,
1
Patrick Flanagan, specifically requested any written reports on Minor's drug
transactions, Dunlap claimed that he refused to provide the documents because he thought that Mazzan was
involved in April Barber's murder and defense counsel simply wanted discovery for that case. Dunlap admitted
that at trial he had been convinced that other people were involved in Minor's murder. Mazzan's counsel asked
Dunlap how he could tell the jury at trial that no evidence supported Mazzan's defense when his file contained
such evidence. Dunlap said that he simply based his argument on the record before the jury and that other
evidence was not relevant.
Mazzan called as witnesses his trial attorney, McNabney; his trial investigator, Richard Terry Gilmartin; his
post-trial attorney, Flanagan; his appellate attorney, Jane McKenna; and his postconviction attorney, Don Evans.
In representing Mazzan, none had seen any of the police reports at issue.
McNabney testified. Before trial, McNabney became aware through the District Attorney's Office that
Warmbier was involved in drug trafficking with Minor.
[I]t was related to me that there may have been a possibility [Warmbier] was here in Reno . . . on the day
of the murder.
. . .
In discussions with the prosecutor at some point in time I was satisfied in my own mind that Douglas
Warmbier's alibi was solid and he wasn't in fact in Reno, and I didn't pursue the matter further.
McNabney also telephoned Zinman, Warmbier's attorney, regarding the alibi. McNabney did not recall ever
being told that one person had placed Warmbier in Reno around the time of the murder. This information would
have been helpful to Mazzan's defense, but the representations McNabney received indicated that [Warmbier]
wasn't in fact here, that he had an alibi, and that's all I knew.
Flanagan testified. He initially represented Mazzan after his conviction and moved for a new trial. In April
1981, he moved to inspect and copy any records the state had of Minor's drug dealings.
__________

1
We will refer to Flanagan's role as post-trial because it appears that he only represented Mazzan in his
motion for a new trial, while Jane McKenna represented Mazzan on direct appeal.
ings. Dunlap opposed the motion and asserted that the evidence regarding Minor's drug dealings contained
nothing exculpatory.
At the hearing, Mazzan also attempted to present evidence he had uncovered after obtaining the police
reports. He offered it to show that the reports contained material information which could have led to further
exculpatory information. The district court ruled that the evidence was not relevant because it had not been in
the possession of the state. Testimony by Michael Hodge and an affidavit by Dean Taylor Brymer were therefore
not considered by the court, but were submitted as offers of proof. According to Brymer's affidavit, in December
1978, less than two weeks before the murder, Brymer broke into Minor's residence and stole a large amount of
marijuana and $6,000.00 in cash. Hodge, the investigator for the State Public Defender, provided an affidavit
and notes. Hodge interviewed Dorothy Nyland in Indiana in April 1997. When shown the alibi letter over her
name, Nyland did not remember writing it and did not think the signature was hers. Nyland said that Warmbier
had called her from Reno on December 22, 1978, the day that Minor's body was discovered. Hodge also
interviewed Warmbier, who was in a hospital after a serious accident. Warmbier admitted being in Reno on the
day of the murder. He said that he and Minor had worked for Siffin, who had been the brains and money
behind the drug operation. Minor stole some drugs from Siffin, but Warmbier did not know the quantity; Siffin
was capable of killing Minor, but Warmbier would have killed Siffin if he even thought Siffin did it.
Warmbier did not recall seeing or authorizing the alibi letters.
In response, the state submitted an affidavit by its own investigator. That affidavit stated in part that the
investigator spoke to Warmbier, that Warmbier said he spoke to someone about Minor's murder while he was
heavily medicated and did not recall what he said, and that Warmbier denied being in Reno at the time of the
murder.
On August 18, 1997, the district court entered an order denying the habeas petition. The court concluded that
although the police reports had exculpatory value and were probably not provided to Mazzan, prosecutors had
told McNabney orally any information required by Brady. McNabney was fully apprised of Mr. Warmbier and
his alleged activity in Reno but chose not to pursue a defense involving Warmbier, believing it to be
frivolous. The court further concluded that any evidence pertaining to Siffin was not Brady material because it
did not sufficiently show that Mr. Siffin was ever in Reno at or near the time of the murder, or that his
involvement somehow exculpates Mr. Mazzan. The court did not rule on any other issues.
DISCUSSION
The failure to provide appellant with material information favorable to his defense
Standard of review and applicable law
[Headnote 1]
Determining whether the state adequately disclosed information under Brady v. Maryland, 373 U.S. 83
(1963), requires consideration of both factual circumstances and legal issues; thus, this court reviews de novo
the district court's decision. See Smith v. Secretary Dept. of Corrections, 50 F.3d 801, 827 (10th Cir. 1995).
[Headnotes 2, 3]
Brady and its progeny require a prosecutor to disclose evidence favorable to the defense when that evidence
is material either to guilt or to punishment. See Jimenez v. State, 112 Nev. 610, 618-19, 918 P.2d 687, 692
(1996). Failure to do so is a violation of due process regardless of the prosecutor's motive. Id. at 618, 918 P.2d
at 692. Where the state fails to provide evidence which the defense did not request or requested generally, it is
constitutional error if the omitted evidence creates a reasonable doubt which did not otherwise exist. Id. at 619,
918 P.2d at 692. In other words, evidence is material if there is a reasonable probability that the result would
have been different if the evidence had been disclosed. Id.
[Headnotes 4-6]
This materiality does not require demonstration by a preponderance that disclosure of the evidence
would have resulted in acquittal. Kyles v. Whitley, 514 U.S. 419, 434 (1995). Nor is it a sufficiency of the
evidence test; a defendant need not show that after discounting the inculpatory evidence in light of the
undisclosed evidence, there would not have been enough left to convict. Id. at 434-435. A reasonable
probability is shown when the nondisclosure undermines confidence in the outcome of the trial. Id. at 434. In
Nevada, after a specific request for evidence, a Brady violation is material if there is a reasonable possibility that
the omitted evidence would have affected the outcome. Jimenez, 112 Nev. at 619, 918 P.2d at 692; Roberts v.
State, 110 Nev. 1121, 1132, 881 P.2d 1, 8 (1994).
[Headnotes 7, 8]
In determining its materiality, the undisclosed evidence must be considered collectively, not item by item.
Kyles, 514 U.S. at 436. [T]he character of a piece of evidence as favorable will often turn on the context of the
existing or potential evidentiary record."
record. Id. at 439. The prosecutor is responsible for determining whether evidence is material and should be
disclosed. Thus,
a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence. See
Agurs, 427 U.S. at 108 ([T]he prudent prosecutor will resolve doubtful questions in favor of
disclosure). This is as it should be. Such disclosure will serve to justify trust in the prosecutor as the
representative . . . of a sovereignty . . . whose interest . . . in a criminal prosecution is not that it shall win
a case, but that justice shall be done. Berger v. United States, 295 U.S. 78, 88 (1935). And it will tend to
preserve the criminal trial, as distinct from the prosecutor's private deliberations, as the chosen forum for
ascertaining the truth about criminal accusations.
Id. at 439-440.
[Headnotes 9, 10]
Due process does not require simply the disclosure of exculpatory evidence. Evidence also must be
disclosed if it provides grounds for the defense to attack the reliability, thoroughness, and good faith of the
police investigation, to impeach the credibility of the state's witnesses, or to bolster the defense case against
prosecutorial attacks. See id. at 442 n.13, 445-51. Furthermore, [d]iscovery in a criminal case is not limited to
investigative leads or reports that are admissible in evidence. Jimenez, 112 Nev. at 620, 918 P.2d at 693.
Evidence need not have been independently admissible to have been material. Carriger v. Stewart, 132 F.3d
463, 481 (9th Cir. 1997), cert. denied, 523 U.S. 1133, 118 S. Ct. 1827 (1998).
[Headnotes 11, 12]
In sum, there are three components to a Brady violation: the evidence at issue is favorable to the accused; the
evidence was withheld by the state, either intentionally or inadvertently; and prejudice ensued, i.e., the evidence
was material. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 1948 (1999). Mazzan's instant petition
for habeas relief is a successive one; therefore, to avoid procedural default under NRS 34.810, Mazzan has the
burden of pleading and proving specific facts that demonstrate both good cause for his failure to present his
claim in earlier proceedings and actual prejudice. NRS 34.810(3). Cause and prejudice parallel two of the three
Brady violation components. If Mazzan proves that the state withheld evidence, that will constitute cause for not
presenting his claim earlier. If he proves that the withheld evidence was material under Brady, that will establish
actual prejudice. See Strickler, 527 U.S. at 282, 119 S. Ct. at 1949.
Analysis
[Headnote 13]
Mazzan argues that whatever information prosecutors may have provided orally to his counsel before trial
was inadequate under Brady. He stresses that only access to the documents themselves would have provided the
range and detail of information necessary to fully understand the implications of the police investigation or to
dismantle Warmbier's alibi. We conclude that Mazzan is correct and therefore that the record does not support
the district court's finding that Mazzan was fully apprised regarding Warmbier. Further, the record and relevant
law do not support the court's conclusion that the information regarding Siffin was immaterial.
The state's behavior and arguments in this case have not always been consistent. At times, the state has
downplayed the importance of the information at issue and has questioned or even denied Mazzan's right to
receive it; nevertheless, the state now concedes that the information was material but maintains that it was fully
handed over.
The most obvious inconsistency is that former D.A. Dunlap maintains
2
that he provided Mazzan's trial
counsel, McNabney, with all required Brady information on Minor's drug dealings even though in 1981 he
refused to provide the same information to Mazzan's post-trial counsel, Flanagan, asserting that it included
nothing exculpatory. Dunlap's testimony suggests that he did not convey the information to McNabney in any
detail. First, because he did not consider it exculpatory, he had little reason to give McNabney a thorough
accounting of the information. Second, if he had already provided the information in full detail and depth to
McNabney, there would have been no reason to oppose giving it to Flanagan. Dunlap's concern that Flanagan
wanted to conduct a fishing expedition is puzzling since Dunlap alleges that he had already disclosed the
information in his files and neither he nor McNabney considered it favorable to the defense. Thus, Dunlap's
refusal during post-trial proceedings to disclose the documents to Flanagan strongly suggests that Dunlap did not
give McNabney all relevant information before the trial.
Mills Lane also believes that he told McNabney everything required by Brady, yet before the trial he rebuked
the police captain for providing the press with general information about the investigation because it's the same
as turning [police reports] over to the defense. This rebuke does not appear consistent with a thorough
disclosure by the prosecution of the information in question.
__________

2
In this context, the present tense is used to refer to what witnesses said at the 1997 evidentiary hearing on
the instant petition.
a thorough disclosure by the prosecution of the information in question.
Lane is not sure if he told McNabney that the DEA was investigating Warmbier and Siffin, and he actually
considers information that Warmbier was in Reno on the day of the murder of little significance. Dunlap
similarly admits that he probably did not consider the information on Warmbier to be Brady material. Given this
grudging view as to the materiality of the information regarding Warmbier and Siffin, it is evident that Lane and
Dunlap did not provide McNabney with the relevant information in sufficient depth or detail to satisfy Brady.
The district court found that the prosecution probably did not provide any documents to the defense. This
finding is clearly supported by the record which shows that neither Lane nor Dunlap allowed McNabney to look
in their file or provided him with copies of any reports. None of Mazzan's attorneys recalled seeing the
documents. As Lane puts it, it was his practice to give defense attorneys a synopsis of information he
considered relevant.
We assume that the prosecutors tried to provide McNabney orally with the information they considered
relevant, but it is clear that this effort fell short of satisfying Brady. For example, Lane informed McNabney that
he had documents confirming Warmbier's alibi, but McNabney could not have questioned the authenticity of the
signatures on two of the alibi documents without seeing them or questioned the reliability of the alibi sources
without reviewing the police reports which connected the sources to Warmbier. Lane and Dunlap may have read
the police reports and passed on what they considered the gist of those reports, but they could not have imparted
a constitutionally adequate picture to McNabney simply because the picture was too subtle and complicated to
be sufficiently conveyed in oral discussions. Moreover, it is almost inevitable that as prosecutors they did not
peruse the potentially exculpatory information with the same incentive or attention that defense counsel would
have brought to it.
The United States Supreme Court has never held that the Constitution requires an open file policy by
prosecutors. Kyles, 514 U.S. at 437. But providing defense counsel with copies of reports in a case like this
would avoid the danger of prosecutors' tacking too close to the wind, either consciously or inadvertently, by
overlooking not only material facts but material implications and connections between facts. Unfortunately, Lane
and Dunlap did not avoid that danger here.
The state argues that McNabney knew all about the police investigation of Warmbier and Siffin as shown by
McNabney's request at trial to question detectives about their investigation. We conclude, on the contrary, that
the trial transcript really shows how little McNabney knew.
how little McNabney knew. First, McNabney's comments reveal no detailed knowledge of the investigation.
Second, McNabney actually thought that police had gone to Hawaii to investigate, when they had never gone
there. This indicates that his knowledge was based more on newspaper reports, which had said investigators
would go to Hawaii, than accurate information supplied by prosecutors. Third, McNabney did not discover until
the state's case was nearly complete that a police report contained a statement by Minor's sister that Minor had
told her he was afraid because of his drug dealings. It is not clear whether this belated discovery was due to the
state's late delivery of the report or McNabney's failure to read the report earlier even though he had it. What is
clear, however, is that the prosecution did not inform McNabney that the sister's husband was a potential
witness. McNabney was completely unprepared when the state called the husband to the stand, and the husband's
testimony largely nullified any benefit to the defense provided by Minor's sister's testimony.
Dunlap's closing argument also suggests that prosecutors never fully informed McNabney of the evidence in
question. If McNabney had known police investigators posited a direct connection between Minor's murder
and his Midwest drug activities, it seems unlikely that Dunlap would have repeatedly asserted in closing
argument, without apparent fear of contradiction: There is no evidence [that Minor was killed over some drug
deal]. The police were unable to find anything.
3

McNabney and Mazzan's other former attorneys all testified that they did not see the police reports and were
unaware of specifics of the police investigation. For example, it was related to McNabney that there may have
been a possibility that Warmbier was in Reno at the time, but discussions with the prosecutor satisfied
McNabney that Warmbier's alibi was solid. McNabney consistently states that he does not recall ever being told
that one person (i.e., Tim Beck) had placed Warmbier in Reno near the time of the murder.
[Headnote 14]
Finally, if McNabney knew in any detail the information in the police reports, it is impossible to understand
his failure at trial to cite or use it in any way. Dunlap and Lane both say that McNabney considered the
information unimportant,
__________

3
Mazzan asserts that these and similar remarks made by Dunlap were intentionally false and misleading.
Since Mazzan's conviction must be reversed due to Brady violations, we need not decide this issue, but if the
issue required resolution, the remarks would certainly warrant scrutiny. Cf. U.S. v. Udechukwu, 11 F.3d 1101,
1106 (1st Cir. 1993) (it is improper for a prosecutor to question the existence of facts known by the prosecution
to exist).
McNabney considered the information unimportant, but this cannot be reconciled with McNabney's statement to
the trial court that if we can't get into [the police investigation of Minor's drug connections], we might as well
end the whole trial right here. Moreover, it is unconvincing to assert that a defense counsel would have found
the information unimportant: the information was important, as the district court ruled
4
and the state now
concedes. It appears that McNabney did not consider the information in the police reports unimportant; rather,
he accepted the prosecutors' assessments that those reports were unimportant. Such assessments do not satisfy
Brady. See United States v. Shaffer, 789 F.2d 682, 690 (9th Cir. 1986) (the state cannot satisfy Brady by
informing defense counsel of evidence while telling counsel that the evidence is of no value to the defense).
Thus, the record as a whole shows that the prosecution did not provide McNabney with favorable
information in the amount or specificity required by Brady.
[Headnote 15]
The district court also did not apply the proper standard in assessing the materiality of the evidence in
question. It considered the evidence in isolated bits and found that many of those bits were not exculpatory. The
proper question is whether evidence is favorable, and this will often turn on the context of the existing or
potential evidentiary record. Kyles, 514 U.S. at 439. Undisclosed evidence must be considered collectively, not
item by item. Id. at 436.
The district court, for example, concluded that the fact that one of Warmbier's alibi witnesses was connected
to one of Warmbier's drug associates was not exculpatory. That fact, however, is favorable and material
information under Brady because, along with other weaknesses in the alibi evidence, it casts doubt on the
authenticity of the alibi
5
and supports Mazzan's theory that Warmbier is a viable suspect in the
murder.
__________

4
The district court's ruling in 1982 and its latest ruling were also inconsistent. After an in camera review of
the District Attorney's file in 1982, the court found nothing exculpatory which needed to be handed over to the
defense. In 1997, the court (the same district judge) found that the documents at issue had material exculpatory
value. No explanation for this inconsistency is apparent.

5
As Mazzan asserts and the state effectively concedes, the alibi appears false. None of the alibi documents
were sworn statements. Signatures on two documents, purportedly by the same person, Nyland, are clearly
dissimilar. Both sources for the alibi were connected to Warmbier: Nyland was his girlfriend, and the other
source was apparently the girlfriend of Carmichael, Warmbier's drug associate. Moreover, according to
Mazzan's investigator, Nyland does not remember writing her purported alibi letter or recognize the signature on
it. The investigator also states that Nyland and Warmbier now admit that Warmbier was in Reno when Minor's
body was discovered (consistent with Warmbier's admission to Beck). Thus, the alibi evidence supplied to Lane
by Warmbier's lawyer was, to say the least, vulnerable to challenge.
Warmbier is a viable suspect in the murder. It is also further evidence of the insufficiency of the prosecutors'
disclosures to McNabney. Despite its dubiousness, Lane accepted the alibi and assured McNabney that it was
sound.
The district court thus erred in failing to discern that without including specific details and access to the
written reports, the prosecutors' oral disclosures were constitutionally inadequate.
The district court also concluded that the evidence pertaining to Siffin was not Brady material because it did
not sufficiently show that Siffin was in Reno near the time of the murder or that Siffin's involvement
exculpated Mazzan. Again, the court failed to consider all the evidence in context and erroneously required
the evidence to be definitively exculpatory to be material.
We conclude that the evidence as a whole regarding Siffin was favorable to Mazzan's case. The DEA
suspected Siffin, who lived in Bloomington, Indiana, of being a major cocaine trafficker. Warmbier told
Mazzan's investigator that he and Minor worked for Siffin, who was the brains and money behind the
operation. The three apparently went to Hawaii together about three weeks before the murder. According to one
of Minor's friends, Siffin once slipped some cocaine on Minor, which highly upset Minor. Shortly before his
death, Minor told another friend that he had a big drug deal pending on Wednesday, Thursday, or Friday (he was
killed on Thursday) with a Mr. Big, a large narcotics trafficker from Bloomington, Indiana; this person had
once burned him and was an asshole; this person knew how to get drugs through Hawaiian agricultural
inspections; most of the money Minor had belonged to this person; and Minor at one time apparently owed this
person about $6,000.00. Months before his death, Minor told one of his sisters that he had a debt and needed
money; two weeks before his death, he told another sister that he was afraid because of his drug dealings.
Around the time of Minor's murder, Siffin went underground, and drug investigators had not seen him since.
This evidence casts a rather sinister light on Siffin and was therefore favorable to Mazzan's defense and
should have been disclosed. Siffin is likely the Mr. Big whom Minor was planning to meet around the time of
his murder. Relations were not good between the two men: Siffin had manipulated and endangered Minor
before, and Minor disliked Siffin as a result. Minor worked for Siffin on consignment and may have owed him a
good deal of money at the time of the murder. Mazzan has now uncovered evidence that Minor stole drugs from
Siffin.
6
Finally, Siffin dropped out of sight right at the time of the murder.
__________

6
Mazzan's investigator reports that according to Warmbier, Minor stole drugs from Siffin and Siffin was
capable of killing Minor. Mazzan also has
out of sight right at the time of the murder. This evidence does not establish that Siffin was the murderer, but it
was certainly favorable to Mazzan's case. We conclude that it would have: (1) contributed to reasonable doubt as
to Mazzan's guilt; (2) provided a basis to challenge the thoroughness of the police investigation; and (3)
provided a lead which the defense could have pursued to possibly gain further favorable evidence.
[Headnote 16]
We have already discussed Dunlap's refusal to turn the police reports over to post-trial counsel Flanagan as
evidence that he did not disclose sufficient information to trial counsel McNabney. This post-trial refusal also
constitutes a Brady violation in its own right. In its order denying Mazzan's petition, the district court found that
the information in the reports was exculpatory but that McNabney had received the necessary portions of it. The
court did not consider that the state withheld this same information from Flanagan, nor have the parties
addressed this as a distinct issue. In moving for a new trial in 1981, Flanagan specifically requested any records
the state had of Minor's drug dealings. The state refused to provide them, and the district court at that time ruled
in favor of the state. The court has now found that the records contained material, exculpatory
informationinformation which the state refused to disclose in 1981.
To sum up: the record does not support the district court's finding that the state fully apprised McNabney
regarding Warmbier; the court erred in concluding that the information on Siffin was not material and that
McNabney had no right to it; and the state also violated Brady when it refused Flanagan's post-trial request for
records on Minor's drug dealings. We do not conclude that the prosecutors in this case acted in bad faith.
However, the failure to disclose evidence favorable to the defense violates due process irrespective of the good
faith or bad faith of the prosecution. Brady, 373 U.S. at 87; see also Jimenez, 112 Nev. at 618, 918 P.2d at
692
__________
information that Minor lost $6,000.00 and a large amount of marijuana in a burglary not long before his death.
The district court excluded this evidence from the 1997 hearing because the state did not possess or withhold
this evidence at trial, and the state argues that this court should not consider it. However, this evidence is
relevant to establish the materiality of the evidence which the state did possess. [T]he character of a piece of
evidence as favorable will often turn on the context of the existing or potential evidentiary record. Kyles, 514
U.S. at 439 (emphasis added). The state must disclose potentially exculpatory evidence if it is material; it is up
to the defense to deal with problems concerning the extent to which the evidence [can] be used or expanded
upon both before and during trial. Jimenez, 112 Nev. at 620, 918 P.2d at 693 (emphasis added).
P.2d at 692 (the prosecutor's motive for withholding exculpatory evidence is immaterial).
[Headnote 17]
The final question is whether the withheld evidence was material. When the state fails to disclose evidence
which the defense did not request or requested generally, it is constitutional error if the omitted evidence creates
a reasonable doubt, i.e., if there is a reasonable probability that the result would have been different if the
evidence had been disclosed. Jimenez, 112 Nev. at 619, 918 P.2d at 692. A reasonable probability is shown
when the nondisclosure undermines confidence in the outcome of the trial. Kyles, 514 U.S. at 434. After a
specific request for evidence, a Brady violation is material if there is a reasonable possibility that the undisclosed
evidence would have affected the outcome. Jimenez, 112 Nev. at 619, 918 P.2d at 692.
Though McNabney made only a general discovery request before trial, he also tried to examine witnesses in
regard to the police investigation but was thwarted by the state's objection.
7
Thus, he made the functional
equivalent of a specific request for the information from the state. See id. at 619, 918 P.2d at 692-93. And
Flanagan specifically requested the withheld information. Therefore, the standard is whether there was a
reasonable possibility of a different result. We conclude that even under the reasonable probability standard the
withheld evidence was material.
There was sufficient evidence to convict Mazzan, but it was not overwhelming. Mazzan certainly had the
opportunity to murder Minor, and he initially lied about being present when the murder occurred, but there was
never a satisfying explanation of Mazzan's motive, and he had no violent background. The state said the motive
was robbery, but the quantity of drugs and money Minor had when he was killed was never clearly established,
and the state's closing argument conceded that motive presented some difficulty. The state depicted Mazzan as a
calculating murderer who took careful actions, like changing his coat and shoes, to conceal his identity, but it
was hardly careful for Mazzan to commit the murder when he knew that three people would be able to place him
with the victim at the scene of the crime shortly before the murder.
__________

7
When McNabney sought to cross-examine the police witnesses on their investigation, the state objected that
such evidence was irrelevant hearsay, and the district court agreed and excluded the evidence. This was error
because it is a permissible defense tactic to attack the reliability, thoroughness, and good faith of a police
investigation. See Kyles, 514 U.S. at 442 n.13, 445-51. Evidence need not have been independently admissible
to have been material. Evidence is material if it might have been used to impeach a government witness . . . .
Carriger, 132 F.3d at 481.
murder. The evidence in the police reports provided support for Mazzan's defense that someone else murdered
Minor because of his drug dealing. It also provided a basis to impeach the thoroughness of the state's
investigation of the crime. We conclude that the evidence was material and the failure to disclose it undermines
confidence in the outcome of the trial.
8

Other claims
Mazzan contends that he received ineffective assistance of counsel from his trial counsel. We need not
decide this issue because of our conclusion that the violation of Brady requires reversal.
[Headnotes 18, 19]
Mazzan also lists six other claims which he raised in his petition and which the district court did not address:
other instances of ineffective assistance of counsel; destruction of material evidence by the state; conflict-laden
counsel; questioning by the state while Mazzan was held without a probable cause hearing; an unconstitutional
instruction on reasonable doubt; and improper sentencing instructions. He does not cite the record regarding
these claims, does not discuss their merits, and does not address whether they are procedurally barred.
Contentions unsupported by specific argument or authority should be summarily rejected on appeal. See Jones v.
State, 113 Nev. 454, 468, 937 P.2d 55, 64 (1997); Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987).
We therefore have not considered these claims.
__________

8
In its statement of facts, the state asserts: Ultimately, Warmbier and Siffin were eliminated as suspects in
this case, primarily based on the efforts of the DEA. The state cites Det. Teglia's testimony at the evidentiary
hearing in 1997 to support this assertion, but nothing in Teglia's testimony or elsewhere in the record supports
this assertion. Although Mazzan's counsel asked Teglia repeatedly if police ever specifically eliminated
Warmbier and Siffin as suspects in this case, Teglia never answered with a simple affirmative; in Teglia's view,
the evidence against Mazzan eliminated other suspects.
The record supports Sgt. Stock's view that Teglia and Penegor were frustrated in their Midwest investigation
and never eliminated all other possible suspects in this case. After returning from the Midwest in February 1979,
Dets. Teglia and Penegor reported that before their trip, the investigation had reached a complete standstill,
but now they had new areas . . . establishing a more viable case for the prosecution. They had even asked
authorities in the Midwest to help continue the investigation. At the time of that report, Mazzan had already been
in custody for almost two months, and the record does not reflect any significant developments in the evidence
against Mazzan after the report. It is clear that at the conclusion of their Midwest investigation, contrary to their
later statements, Teglia and Penegor believed their efforts had been productive and they did not consider
Mazzan to be their only suspect.
Remand to the same district judge
[Headnote 20]
Mazzan claims that his case must be remanded to a judge other than District Judge Breen because Judge
Breen was indifferent to Mazzan's claims in the instant petition and does not respect the federal constitution.
Mazzan cites the trial transcript from another appeal decided by this court, quoting comments made by the
prosecutor in that case which were critical of the constitutional rights provided to criminal defendants. See
Middleton v. State, 114 Nev. 1089, 1101, 1112 n.6, 968 P.2d 296, 305, 312 n.6 (1998), cert. denied, 528 U.S.
927 (1999). These comments were made in Judge Breen's court, and Mazzan claims that Judge Breen did not
respond to them and thus in effect adopted them.
We conclude that this claim lacks any merit. We are confident that if any further proceedings are necessary
in this case, Judge Breen will conduct them in a competent, impartial manner.
Determining whether retrial is permissible
Because his conviction resulted after the state withheld exculpatory evidence and he has been on death row
for almost twenty years, Mazzan asks this court to vacate his conviction with prejudice to the state's right to
retry him. He says it would be unfair to require him to defend himself with stale evidence. We decline to make
that determination and remand this case to the district court. On remand, if the state chooses to pursue the
murder charge, Mazzan may raise this claim in district court by the appropriate motion.
CONCLUSION
The record shows that Mazzan's counsel never received full disclosure of material evidence favorable to the
defense. This violated Mazzan's due process rights. Mazzan has demonstrated cause for not raising this claim
before and prejudice. We therefore reverse the judgment of conviction and remand for further proceedings
consistent with this opinion.
9

Maupin, J., with whom Young, J., agrees, concurring:
I agree that Mazzan is entitled to a new trial. The information obtained following his conviction and
recapitulated by the majority comprises a body of circumstantial evidence, which undermines the original
outcome below. Thus, a jury should hear this evidence in the interest of justice.
__________

9
The Honorable Myron E. Leavitt, Justice, voluntarily recused himself from the decision of this matter.
evidence in the interest of justice. However, to the extent that the police and members of the Washoe County
District Attorney's Office stand accused of misconduct by Mazzan, separate comment is warranted.
In the light of a retrospective analysis, the newly disclosed evidence does carry a certain persuasive force.
This notwithstanding, we should remember that the investigators and the prosecutors were presented with a
substantial body of highly probative evidence tying Mazzan to the murder of Richard Minor.
Mazzan was present at the scene of the murder at the time of its occurrence. There were no signs of forced
entry by other interlopers at Minor's residence. Mazzan was covered in Minor's blood immediately after Minor's
homicide. Bloody shoe prints consistent with a pair of shoes Mazzan had been wearing were found at the crime
scene. Blood was found in Mazzan's vehicle after he fled without alerting the authorities. Mazzan failed to
provide any information about the incident when contacted by Las Vegas police. Mazzan also lied about the
events during his initial interaction with investigators in Reno. Finally, it was only after police confronted him
with physical evidence incriminating him that Mazzan ultimately admitted to his presence at the crime scene.
The evidence that Mazzan claims exonerates him will only raise inferences that may or may not sufficiently
undermine the considerably damning evidence against him. The prosecutors and investigators looking at the case
prospectively could reasonably have determined that the evidence in support of Mazzan's theory was not
convincing.
It was not misconduct for the police and the prosecutors to subjectively conclude that the actual perpetrator
was in custody and properly charged. Likewise, it was not misconduct under the then existing procedures for the
prosecutors to make tactical decisions based upon their interpretation of the quality of information available,
their interactions with the police and their interactions with defense counsel. Certainly, the provision of a
summary of exculpatory information to defense counsel and the statement by that counsel that he would not be
contending that one of the other suspects had committed the murder was sufficient for the prosecutor to have
concluded that further Brady disclosures were unnecessary. Finally, a theory that other persons may have been
involved does not, of itself, exonerate a defendant who ultimately admitted his presence during the commission
of the murder.
Many of the decisions by these prosecutors, while arguably subject to some criticism in hindsight, were most
likely born of a true belief in the validity of the original charges.
belief in the validity of the original charges. Thus, the remand for another trial rather than a vacation of the
charges is appropriate.
____________
116 Nev. 78, 78 (2000) State v. Johnson
THE STATE OF NEVADA, Appellant, v. JESSIE JOHNSON and LASHAWN JOHNSON, Respondents.
No. 31368
January 27, 2000 993 P.2d 44
Appeal from an order of the district court granting respondents' motion to suppress. Eighth Judicial District
Court, Clark County; John S. McGroarty, Judge.
Accused moved to suppress evidence obtained as result of search of his vehicle during stop for traffic
violation. The district court granted motion. State appealed. The supreme court, Leavitt, J., held that accused's
general consent to search his vehicle did not include consent to dismantle vehicle.
Affirmed.
Shearing, J., with whom Young and Maupin, JJ., joined, dissented.
Chief Deputy District Attorney, and Gerald J. Gardner, Deputy District Attorney, Clark County, for Appellant.
John M. Turco, Las Vegas, for Respondent Jessie Johnson.
Morgan D. Harris, Public Defender, and Daren B. Richards and Elizabeth M. Quillin, Deputy Public
Defenders, Clark County, for Respondent Lashawn Johnson.
1. Criminal Law.
Findings of fact in a suppression hearing will not be disturbed on appeal if supported by substantial evidence.
2. Criminal Law.
District court's findings of fact in a suppression hearing are reviewed under a deferential standard.
3. Searches and Seizures.
A waiver and consent, freely and intelligently given, converts a search and seizure which otherwise would be unlawful into a
lawful search and seizure. U.S. Const. amend. 4.
The voluntariness of a consent to search must be proved by the state by clear and convincing evidence. U.S. Const. amend. 4.
In determining voluntariness of consent to search, court must distinguish between the peaceful submission by the arrested suspect
to the authority of a law enforcement officer from an intelligent and intentional waiver of a constitutional right. U.S. Const. amend. 4.
Whether an apparent consent to search without a warrant was voluntarily given is a question of fact. U.S. Const. amend. 4.
Any search must be limited to the terms of the consent, and whether the scope of consent has been exceeded is a factual question
to be determined by examining the totality of the circumstances. U.S. Const. amend. 4.
Accused's consent to search his vehicle did not include consent to officer's removing screws from panel below glove box.
Reasonable person in accused's situation would not have understood his general consent to search car for drugs, alcohol, or weapons
would authorize officer to dismantle vehicle. U.S. Const. amend. 4.
OPINION
Nevada Highway Patrol Trooper Lt. Todd Ellison and an investigator from the Nevada Division of
Investigation were riding together on patrol as part of Desert Hoax, a multi-agency criminal
interdiction operation. Ellison received a call from another investigator from the division that a vehicle
had failed to stop at a stop sign at the bottom of the northbound overpass off-ramp of Interstate 15 in
Clark County. Ellison was in full uniform and driving a marked Nevada Highway Patrol vehicle.
Ellison stopped the 1988 Buick with California plates and approached the driver, respondent Jessie
Johnson. Respondent Lashawn Johnson was the sole passenger in the automobile. The trooper asked
Jessie for his driver's license, registration and insurance. He ran a check on the license, examined the
other documents given to him by respondent Jessie Johnson, and gave him a verbal warning rather than
a citation.
The trooper asked the purpose of Jessie's trip. He replied that he was going to Montana to do
carpentry work with some of his relatives and stated that he had his tools in the trunk and that Ellison
could go ahead and look in the trunk to see the tools. Ellison asked Jessie whether he had any guns in the
vehicle. Jessie made eye contact with Ellison and stated, No. Jessie was asked if he had any alcohol,
if he had any alcohol, and Jessie continued making eye contact and said, No. Ellison asked Jessie if he had any
drugs in the car. Jessie averted his gaze, looked back to the car, dropped his head, and said, No, you can go
ahead and look. The trooper also testified that he asked Jessie if he could search the vehicle and Jessie replied,
Yes.
Rosell Owens, a trooper with twenty-one years' experience as an officer and who had conducted thousands of
vehicle searches, arrived to conduct the search of the vehicle. He was in full uniform and driving a Nevada
Highway Patrol vehicle. He began by searching the trunk where he observed a toolbox and some tools. He
searched the backseat area by pulling the backseat out of the car and placing it on the passenger side of the front
seat. He then pulled up the carpet in the backseat area.
Owens searched the front seat and the dashboard areas. On the dashboard area just below the glove box,
Owens noted that the screws on a panel were not the type of black screws that are normally used in automobiles,
but were shiny, non-factory screws. He removed three screws directly below the hinge of the glove box, a panel
dropped and Owens recovered three bindles of narcotics. Owens then searched the rest of the car but did not find
any other area which would indicate any concealment. The entire search took less than ten minutes. The sole
issue before this court is whether the district court erred in determining that the search in this case exceeded the
scope of consent and in granting the motion to suppress evidence.
1

The district court granted a motion to suppress the evidence on the grounds that a reasonable person would
not have understood his general consent to search a car for drugs, alcohol or weapons would authorize the
officer to remove screws and pry a panel from the vehicle.
[Headnotes 1, 2]
See Rice v. State,
__________

1
For the purposes of resolution of the issues before the court, we assume that Lashawn had a privacy interest
sufficient to allow his challenge to the evidence obtained during the search. However, we note that this is a
dubious assumption given the evidence in the record. Cf. McKee v. State, 112 Nev. 642, 645, 917 P.2d 940, 942
(1996) (a non-owner driver lacks standing to challenge a vehicle search when the owner of the car is present at
the time of the search). Jessie is the registered owner of the searched vehicle. Further, Lashawn's attorney argued
at the hearing on the motion to suppress, Mr. Johnson was a passenger in the vehicle. He was merely present in
this vehicle. He has no possessory interest in this vehicle at all. We question the state's failure to address the
issue in response to the district court's expression of concern regarding Lashawn's standing. However, because
our resolution of the issue is not necessary to proper resolution of this case, we decline to address it.
113 Nev. 425, 427, 936 P.2d 319, 320 (1997) (citing Tomarchio v. State, 99 Nev. 572, 575, 665 P.2d 804, 806
(1983)). Further, a district court's findings are reviewed under a deferential standard. See Hayes v. State, 106
Nev. 543, 550 n.1, 797 P.2d 962, 966 n.1 (1990).
[Headnotes 3-6]
[A] waiver and consent, freely and intelligently given, converts a search and seizure which otherwise would
be unlawful into a lawful search and seizure. State v. Plas, 80 Nev. 251, 254, 391 P.2d 867, 868 (1964). [T]he
voluntariness of [a] consent must be proved by the [s]tate by clear and convincing evidence. Lightford v. State,
90 Nev. 136, 139, 520 P.2d 955, 956 (1974). [A] court must distinguish between the peaceful submission by
the arrested suspect to the authority of a law enforcement officer, from an intelligent and intentional waiver of a
constitutional right. Thurlow v. State, 81 Nev. 510, 515, 406 P.2d 918, 921 (1965). Whether in a particular
case an apparent consent to search without a warrant was voluntarily given is a question of fact. Plas, 80 Nev.
at 253, 391 P.2d at 868.
[Headnote 7]
Any search must be limited to the terms of the consent and [w]hether the scope of consent has been
exceeded is a factual question to be determined by examining the totality of the circumstances. Canada v. State,
104 Nev. 288, 291, 756 P.2d 552, 553 (1988). This court is not a fact finding tribunal; that function is best
performed by the district court. Zugel v. Miller, 99 Nev. 100, 659 P.2d 296 (1983). The trial court is much
better equipped to resolve the weight and credibility of witnesses.
The district court examined the scope of the consent and concluded the consent to search did not include the
right to dismantle the car, citing State v. Arroyo-Sotelo, 884 P.2d 901, 905 (Or. Ct. App. 1994). If Jessie did
voluntarily consent to a search, would he have consented to the dismantling of his automobile? Innocent citizens
must not be stopped on the pretext of a traffic violation and have their automobiles dismantled when a police
officer has nothing more than a hunch that contraband may be present. Should we allow law enforcement to
treat the Fourth Amendment as an obstacle to overcome rather than recognizing the rights of our citizens to be
free from unreasonable searches and seizures?
[Headnote 8]
There was no clear and convincing evidence Jessie consented to the dismantling of the car or that he
voluntarily gave up his constitutional right. Instead, he merely submitted to authority.
There was substantial evidence to support the district court's ruling and we defer to the court's findings. The
order of the district court suppressing the evidence obtained during the search is affirmed.
Rose, C. J., concurs.
Agosti, J., with whom Becker, J., agrees, concurring:
I write separately to underscore my opinion that Florida v. Jimeno, 500 U.S. 248 (1991), supports the
majority view and is misapplied by the dissent. The rule enunciated in Jimeno requires an inquiry as to whether
it is objectively reasonable to construe the consent to search the vehicle in this case to include consent to
dismantle the vehicle. See id. at 249. I conclude that no reasonable police officer could expect that by being told
that he can go ahead and look for drugs and by hearing yes in response to the officer's request for permission
to search, the officer is entitled to take apart the vehicle. Nor would any reasonable person expect such a search
when giving that consent.
The facts, holding and dictum of Jimeno apply to the search of closed containers inside a vehicle. In Jimeno,
the officer received consent to search a vehicle for narcotics. The officer opened a folded brown paper bag on
the vehicle's passenger floorboard and found cocaine inside. The United States Supreme Court concluded from
these simple facts that it was objectively reasonable for the police to conclude that the general consent to search
respondent's car included consent to search containers within that car which might bear drugs. Id. at 251. A
reasonable person may be expected to know that narcotics are generally carried in some form of a container. Id.
In so finding, the Court distinguished Jimeno from State v. Wells, 539 So. 2d 464 (Fla. 1989), aff'd on other
grounds, Florida v. Wells, 495 U.S. 1 (1990).
1
Jimeno, 500 U.S. at 251-52. In Wells, the warrantless search of
a locked briefcase in a vehicle's trunk was found to be unreasonable despite a consent to search the trunk. The
Jimeno Court stated that [i]t is very likely unreasonable to think that a suspect, by consenting to the search of
his trunk, has agreed to the breaking open of a locked briefcase within the trunk, but it is otherwise with respect
to a closed paper bag. Id. at 251-52. If the Jimeno Court believed that breaking open a locked briefcase was
unreasonable, it would certainly conclude that dismantling the structure of a vehicle is also
unreasonable.
__________

1
In Wells, the Florida Supreme Court suppressed the fruits of the search based upon an analysis of the
reasonableness of the consent given to the search. Wells v. State, 539 So. 2d at 467-68. The United States
Supreme Court affirmed the suppression based upon an inventory search analysis. Florida v. Wells, 495 U.S. at
3-5.
it would certainly conclude that dismantling the structure of a vehicle is also unreasonable.
The dissent concludes that upon noting previous tampering, . . . [i]t would have been clear to the officer that
a part of the vehicle, not ordinarily accessible, had been previously opened and was a compartment which easily
could have contained drugs. This may very well be true, given the officer's training and expertise in crime
detection, but it is not the standard set forth in Jimeno. Rather than analyze the vehicle search from the officer's
perspective of where contraband may be hidden, we are required to judicially determine what would the typical
reasonable person have understood by the exchange between the officer and the suspect. Jimeno, 500 U.S. at
251.
The dissent would extend the conclusion of Jimeno well beyond folded paper bags, to the very structure of
the vehicle itself. In my opinion, this defies the standard of objective reasonableness required by Jimeno and as
applied by the district court below.
All the cases cited by the dissent involve searches of containers or easily accessed compartments within a
vehicle. None stand for the dissent's view that a general consent to search a vehicle includes dismantling the
vehicle until the driver explicitly stops the search in progress. To illustrate the point, in United States v.
Gutierrez-Mederos, 965 F.2d 800, 803-04 (9th Cir. 1992), cited by the dissent, the circuit court concluded that
unlocking a side panel compartment inside the hatchback area of a vehicle did not exceed the scope of the
driver's general consent to search for drugs or weapons because the nature of that search was not invasive. The
court specifically noted:
The record indicates that [the trooper] did not pry open or break into the side panel, but instead used the
key. Nor did [trooper] Anderson force the loose cardboard divider apart, but rather pulled it back.
Id. at 804. The court obviously noted the significance of the lack of breaking or force in conducting the search.
Had the trooper removed screws or otherwise dismantled the side panel compartment in Gutierrez-Mederos, the
circuit court may well have concluded that the search exceeded the scope of the driver's general consent.
United States v. Garcia, 897 F.2d 1413 (7th Cir. 1990), is also instructive. There, after the occupants
consented to a search for drugs or weapons, the trooper's suspicions were aroused when he noticed the lack of
window cranks and door handles on both doors and mismatched and ill-fitting screws that held the interior door
panels in place. Id. at 1416. Upon closer visual inspection, the trooper and another agent "observed
grey packages wedged inside the door.
the trooper and another agent observed grey packages wedged inside the door. Id. They removed the driver's
side door panel and found marijuana. Id. The circuit court upheld the search on the ground of probable cause,
concluding that the visual observation of the packages inside the door established probable cause. Id. at 1420.
However, before doing so, the court analyzed the search based on the occupants' general consent and stated:
[The trooper's] request to search was directly linked to his inquiry regarding the presence of drugs or
weapons in the truck. Without more, police can only search areas these items may reasonably be expected
to be found. The opening of door panels is not normally included in this set of areas to be searched.
Such a search is inherently invasive, and extends beyond the consent under these circumstances.
Id. at 1419-20 (emphasis added). Thus, it is clear that the court in Garcia would not have approved dismantling
the truck based on consent alone. See also State v. Swanson, 838 P.2d 1340, 1345, 1345 n.5 (Ariz. Ct. App.
1992) (relying on Garcia and Jimeno and concluding that tearing a car apart by removing door panels exceeded
the scope of consent to take a look in the car for drugs, weapons or large sums of money).
I doubt any reasonable citizen would believe he or she was consenting to the kind of search that occurred
here based upon the exchange that occurred here. Nor could a reasonable officer expect, based upon the dialog
that occurred here, that permission had been given to remove a backseat, pull up carpeting, or remove screws
from a panel below a glove box.
A reasonable person, contrary to the supposition of the dissent, would not be thinking about all the possible
ingenious devices employed for drug concealment by the enterprising drug trafficker much less be consenting to
an officer's investigation of all possible manner of smuggling when that citizen authorizes a search.
In the context of this case, the Fourth Amendment's protection from police overreaching is embodied in the
requirement of objective reasonableness. The dissent's view would erode in a serious and significant way this
important constitutional protection.
Shearing, J., with whom Young and Maupin, JJ., join, dissenting:
I would reverse the order of the district court suppressing the evidence found in the vehicle registered to
Jessie Johnson.
The majority assumes that the district court based its decision to suppress the evidence on a finding of fact
regarding the scope of the consent in this particular case as required by Canada v. State, 104 Nev. 288, 291, 756
P.2d 552, 553 (1988). The district court did not do so.
court did not do so. In Canada this court said that whether the scope of the consent is exceeded is a question of
fact to be determined from the totality of the circumstances in the particular case. Id. In this case the district
court made no findings of fact and essentially determined that the scope of consent was exceeded as a matter of
law based on the case of State v. Arroyo-Sotelo, 884 P.2d 901 (Or. Ct. App. 1994). The court quoted the legal
conclusions in Arroyo-Sotelo extensively when the decision was rendered. The Oregon court in Arroyo-Sotelo
stated [a]bsent specific findings to suggest otherwise, a general consent to search a car does not authorize an
officer to search areas of a car that are not designed to be routinely opened and accessed. Id. at 905. I do not
agree that this is the general rule in Nevada or the appropriate standard. Even the Oregon court in Arroyo-Sotelo
did not base its conclusion on the general proposition of law, but rather it made findings of fact based on the
circumstances of the case. That is what the district court did not do.
The United States Supreme Court has stated the standard for measuring the scope of a consent to search is
what a reasonable person would have understood to be the scope of the consent. Florida v. Jimeno, 500 U.S.
248, 251 (1991). The Supreme Court stated:
The touchstone of the Fourth Amendment is reasonableness. The Fourth Amendment does not proscribe
all state-initiated searches and seizures; it merely proscribes those which are unreasonable. Thus, we have
long approved consensual searches because it is no doubt reasonable for the police to conduct a search
once they have been permitted to do so. The standard for measuring the scope of a suspect's consent
under the Fourth Amendment is that of objective reasonablenesswhat would the typical reasonable
person have understood by the exchange between the officer and the suspect? The question before us,
then, is whether it is reasonable for the officer to consider a suspect's general consent to a search of his
car to include consent to examine a paper bag lying on the floor of the car. We think that it is.
(Citations omitted.) Id.
Permission to search granted in general terms may be construed as a broad grant of permission to search.
See United States v. Gutierrez, 965 F.2d 800, 803-04 (9th Cir. 1992). Although the burden is upon the
government to prove the validity of the search, if a suspect intends to limit the scope of his general consent in
any manner, the burden is upon him to do so. See United States v. Patterson, 97 F.3d 192, 195 (7th Cir. 1996).
However, [w]hen an individual gives a general statement of consent without express limitations, the
scope of a permissible search is not limitless.
out express limitations, the scope of a permissible search is not limitless. Rather it is constrained by the bounds
of reasonableness: what a police officer could reasonably interpret the consent to encompass.' United States v.
Harris, 928 F.2d 1113, 1117 (11th Cir. 1991) (quoting United States v. Strickland, 902 F.2d 937, 941 (11th Cir.
1990)).
A general consent to search is usually more than a consent to look at what is in plain view in the trunk or
glove box. As stated in United States v. Snow, 44 F.3d 133, 135 (2d Cir. 1995):
[T]he term search implies something more than a superficial examination. It entails looking through,
rummaging, probing, scrutiny, and examining internally. We therefore conclude, based on the
plain meaning of this common word, that an individual who consents to a search of his car should
reasonably expect that readily-opened, closed containers discovered inside the car will be opened and
examined.
The concurring justices would appear to confine a consensual search to what is in plain view. Contrary to the
assertion in the concurring opinion, I, as a reasonable citizen, certainly would expect that my consent to search
for drugs would encompass a search into areas that are likely to hide drugs, including under seats, carpets, and
non-factory installed panels.
The case of State v. Wells, 539 So. 2d 464 (Fla. 1989), aff'd on other grounds, Florida v. Wells, 495 U.S. 1
(1990), is readily distinguishable from the present case. In Wells, the search of a locked briefcase within a trunk
was held not to be within the scope of the consent to search the trunk; the consent was given to search the
vehicle, not a locked container in the vehicle. Here, Johnson gave consent for a search of the vehicle and
opening a panel in that vehicle was not, as a matter of law, beyond the scope of consent.
The consent in this case was a general consent without any explicit limitation on the scope. The evidence
showed that the officer asked Johnson if he had any drugs, and Johnson stated No, you can go ahead and look.
Then the officer asked if he could search the vehicle and Johnson said Yes. The majority concludes, in effect,
that no reasonable police officer would believe that the general consent included consent to examine the
underside of the glove box and upon noting previous tampering, to remove screws. I disagree. It would have
been clear to the officer that a part of the vehicle, not ordinarily accessible, had been previously opened and was
a compartment which easily could have contained drugs. It is not accurate to describe the action of the police
officer as dismantling the vehicle. Using such a term carries a connotation that far more was done
than removing three mismatched, non-factory installed screws.
carries a connotation that far more was done than removing three mismatched, non-factory installed screws. The
limited intrusion was not excessive, nor was it unreasonable or beyond the scope of the consent.
The scope of the consent is a factual question to be determined according to the evidence in each case. See
Canada 104 Nev. at 291, 756 P.2d at 553. Not only did Johnson give a general consent to search for drugs, but
there was also evidence before the court that Johnson was in a position to observe the search. He stood
unconstrained at the front of the patrol car parked directly behind the vehicle being searched. The officer was not
only kneeling on the ground to look under the glove box in Johnson's view, but also he passed Johnson when he
returned to the patrol car for tools, and again kneeled to reach under the glove box to remove the screws. If
Johnson chose not to observe the search, that was his choice. Johnson could have objected at any point that the
scope of the consent had been exceeded. If he wished to object to the scope, it was his burden to do so. See
Patterson, 97 F.3d at 195. The evidence also indicates that Johnson saw or could have seen the officer remove
the back seat and lift the carpets, which the majority contends is beyond the scope of the consent.
Evidence showing that a person giving consent failed to object to a continuation of the search supports the
position that the search remained within the scope of consent. See United States v. Anderson, 114 F.3d 1059,
1065 (10th Cir. 1997). A majority of the federal circuit courts that have considered the issue have concluded that
the failure to object to the scope of a search is a factor to be considered in determining whether police exceeded
the scope of the consent to search.
1
Moreover, this court has recognized that a person's conduct in failing to
object to a search indicates a waiver of the right not to be subjected to the search. See Lee v. State, 86 Nev. 794,
796-97, 477 P.2d 157, 158 (1970) (Silence, where there is a duty to speak or act, can amount to intelligent
waiver of a constitutional right.)
Validating the search in this case is in no way an erosion of our Fourth Amendment protection against
unreasonable search and seizure. Search based on consent is totally within the control of the one consenting. The
consent may be withdrawn at any time. A police officer should be able to rely on the consent, especially when
the search is being conducted directly in front of the one consenting.
__________

1
See United States v. Anderson, 114 F.3d 1059, 1065 (10th Cir. 1997); United States v. McSween, 53 F.3d
684, 688-89 & n.5 (5th Cir. 1995); United States v. Cannon, 29 F.3d 472, 477 (9th Cir. 1994); United States v.
Martel-Martines, 988 F.2d 855, 858 (8th Cir. 1993); United States v. Berk, 930 F.2d 1219, 1222-23 (7th Cir.
1991), cert. denied, 502 U.S. 896 (1991); Harris, 928 F.2d at 1117-18 (11th Cir. 1991).
when the search is being conducted directly in front of the one consenting.
I would reverse the order of the district court and remand the case for either a new evidentiary hearing or
reconsideration of the order based on the appropriate factual findings and the applicable law.
____________
116 Nev. 88, 88 (2000) Diaz v. Dist. Ct.
ROSALVA DIAZ; EDUARDO JESUS DIAZ, a Minor By and Through His Guardian ad Litem ROSALVA
DIAZ; KATIA GUADALUPE ALCANTARA, a Minor By and Through Her Guardian ad Litem JOSE
ANTONIO ZERMENO; ESTEPHANIA ALCANTARA, a Minor By and Through Her Guardian ad
Litem JOSE ANTONIO ZERMENO; MARIA ESTRADA; and MICHAEL ANTHONY ESTRADA, a
Minor By and Through His Guardian ad Litem VERONICA MOLINA, Petitioners, v. THE EIGHTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF
CLARK, and THE HONORABLE MARK W. GIBBONS, District Judge, Respondents, and GLENN
PUIT, Real Party in Interest.
No. 32968
January 27, 2000 993 P.2d 50
Original petition for writ of mandamus or prohibition.
Petition denied.
Automobile accident victims' survivors filed a wrongful death action against the state, the state Highway
Patrol, and a towing company which released a towed vehicle to the driver of the second vehicle involved in the
accident, who was allegedly intoxicated at the time. During discovery, the survivors moved to compel a news
reporter who investigated the traffic accident to answer questions. The district court denied the motion to
compel, and the survivors petitioned for a writ of mandamus or prohibition. The supreme court, Leavitt, J.,
resolving an issue of first impression and overruling Newburn v. Howard Hughes Medical Institute, 95 Nev.
368, 594 P.2d 1146 (1979) and Las Vegas Sun v. District Court, 104 Nev. 508, 761 P.2d 849 (1988), held that
the waiver statute does not apply to the privilege created by the news shield statute.
Your Legal Power and Herbert L. Michel Jr., Las Vegas, for Petitioners.
116 Nev. 88, 89 (2000) Diaz v. Dist. Ct.
Frankie Sue Del Papa, Attorney General, and Bridget A. Branigan, Deputy Attorney General, Carson City;
Alverson Taylor Mortensen Nelson & Sanders and Kurt Anderson, Las Vegas, for Respondents.
Lionel Sawyer & Collins and Kevin D. Doty, Las Vegas, for Real Party in Interest.
JoNell Thomas, Las Vegas, for Amicus Curiae, Nevada Press Association.
1. Mandamus.
Writ of mandamus may be issued to compel the performance of an act that the law requires as a duty resulting from an office, trust
or station, or to control an arbitrary or capricious exercise of discretion.
2. Prohibition.
Writ of prohibition is the proper remedy to restrain a district court from exercising a judicial function without or in excess of its
jurisdiction.
3. Courts.
Generally, extraordinary relief is unavailable to review discovery orders.
4. Courts.
Consideration of a petition for extraordinary relief may be justified where an important issue of law needs clarification and public
policy is served by supreme court's invocation of its original jurisdiction. One such instance is when a writ petition offers supreme
court a unique opportunity to define the precise parameters of a privilege conferred by a statute that the court has never interpreted.
Questions of statutory interpretation are subject to supreme court's independent review.
6. Statutes.
Words in a statute should be given their plain meaning unless this violates the spirit of the act.
7. Statutes.
No part of a statute should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can properly
be avoided.
8. Statutes.
Where a statute is clear on its face, a court may not go beyond the language of the statute in determining the legislature's intent.
9. Witnesses.
Waiver statute does not apply to the privilege created by the news shield statute, but rather, is limited to those privileges that center
on confidential communications. If the waiver statute applied to the news shield statute, then by publishing confidential information, a
reporter would waive the news shield privilege as to that information, a result that would vitiate the plain language of the news shield
statute, which protects published information from compelled disclosure; overruling Newburn v. Howard Hughes Medical Institute, 95
Nev. 368, 594 P.2d 1146 (1979); Las Vegas Sun v. District Court, 104 Nev. 508, 761 P.2d 849 (1988). NRS 49.275(1), 49.385(1),
(2)(a), (2)(b).
116 Nev. 88, 90 (2000) Diaz v. Dist. Ct.
10. Witnesses.
Privileges relating to special relationships can generally be waived by the source of the confidential information.
11. Witnesses.
Reporter's privilege does not arise strictly as a result of confidence or a special relationship, but rather, the policy rationale behind
the privilege is to enhance the newsgathering process and to foster the free flow of information encouraged by the First Amendment,
and thus, the privilege from compelled disclosure belongs to the journalist, not the source, who may be unidentified. U.S. Const.
amend. 1; NRS 49.275(1), 49.385(1), (2)(a), (2)(b).
12. Witnesses.
Confidential matter is not subject to compelled disclosure pursuant to the waiver statute if it is divulged in the context of another
protected relationship or through an interpreter. NRS 49.385(1), (2)(a), (2)(b).
13. Witnesses.
While confidentiality may be one important factor in communications between a journalist and the source of information,
confidentiality is not the defining factor in the existence of the reporter's privilege, nor does confidentiality play a role in determining
whether a reporter has waived the privilege. The news shield statute protects all information, not just confidential information, which is
obtained by a reporter in his or her capacity as a journalist and which is intended for dissemination. NRS 49.275(1), 49.385(1), (2)(a),
(2)(b).
14. Witnesses.
Once a media litigant has invoked the protection of the news shield statute to resist discovery, the defendant may not later rely on
the privileged information as a defense. NRS 49.275(1).
15. Witnesses.
News shield statute provides no protection for information gathered in capacities other than a journalist's newsgathering and
dissemination activities within the journalist's professional capacity. NRS 49.275(1).
16. Witnesses.
News shield statute is not limited to confidential sources, but includes any source, covers both published and unpublished
information, and includes both the information obtained and the source of the information. NRS 49.275(1).
OPINION
This original petition for a writ of mandamus or prohibition challenges an order of the district court
that denied petitioners' motion to compel the real party in interest to answer deposition questions. The
real party in interest, a news reporter, invoked the protection of Nevada's news shield statute against
compelled disclosure of information he obtained while investigating a fatal traffic accident. As we
conclude that the news shield statute affords reporters a privilege from compelled disclosure of
the contents of a published article,
116 Nev. 88, 91 (2000) Diaz v. Dist. Ct.
reporters a privilege from compelled disclosure of the contents of a published article, we conclude that
extraordinary relief is not warranted; consequently, we deny the petition.
FACTS
On September 21, 1996, at approximately 1:00 a.m., Nevada Highway Patrol (NHP) trooper John
Kennedy responded to a dispatch stating that a person was lying in a northbound lane of Interstate 95 at the
Summerlin Parkway off-ramp in Las Vegas. Upon arriving at the scene, Trooper Kennedy approached the
person, who was identified as Michael Estrada. The record before this court is unclear as to what transpired
next. Trooper Kennedy testified during his deposition that he detected the odor of alcohol on Estrada's breath
and that Estrada admitted that he had been drinking. The record also reveals from the NHP dispatch transcript
that, as Trooper Kennedy was en route to the scene, the NHP dispatcher informed the Las Vegas Metropolitan
Police that there was no need for their involvement; the dispatcher stated, [W]e're there and it's just a broken
down vehicle. Trooper Kennedy later informed the NHP dispatcher that Estrada was the registered owner of
the vehicle but that Estrada claimed he had been riding as a passenger in the vehicle. According to the
transcript, Trooper Kennedy explained to the dispatcher that [t]he reason the vehicle is . . . being towed is it
stalled in the travel lane and as soon as we get clear here I'll be [transporting Estrada] to his . . . residence.
Trooper Kennedy arranged for Estrada's vehicle, which was parked on the shoulder of the road, to be towed
and then drove Estrada home.
Later that day, at approximately 12:30 p.m., Estrada, his wife, daughter, and stepson retrieved Estrada's
vehicle from the towing company. Estrada drove away in the vehicle, with his stepson as a passenger, while his
wife and daughter followed in another vehicle. Shortly thereafter, Estrada and his stepson were involved in a
collision with another vehicle. Estrada, his stepson, and all three people in the other vehicle were killed.
Petitioners, who are relatives of the five victims of the fatal accident, assert that Estrada was intoxicated at the
time of the accident.
1
Following the accident, petitioners filed a wrongful death action against the state, the
NHP, and the towing company.
During discovery, petitioners deposed Trooper Harney, an NHP public information officer, who had been
quoted in articles about the accident that appeared in the Las Vegas Review-Journal.
__________

1
As this matter is a writ petition filed prior to trial of the underlying case, the record before this court is
limited; accordingly, allegations of intoxication remain to be determined in the district court.
116 Nev. 88, 92 (2000) Diaz v. Dist. Ct.
Specifically, the articles, which were authored by real party in interest Glenn Puit, credit Harney with stating,
among other things, that troopers questioned Estrada hours before the fatal pileup for suspicion of drunk
driving. Additionally, Trooper Harney is reported as stating that troopers could not charge Estrada with
drunken driving because Estrada did not have the keys [to the vehicle] in his possession and there were no
witnesses who could say he was behind the wheel. At his deposition, Trooper Harney testified that to the best of
his recollection, what he told Puit about the encounter was that the NHP responded to an abandoned vehicle
alongside the roadway; and that there was a gentleman there that was sitting off the roadway; and that we had
asked him if he . . . was driving the vehicle; and he stated that a friend was and had left; and . . . that there was no
. . . witness to place him behind the wheel of the automobile; and based on that we did not arrest him.
Furthermore, during his deposition, Trooper Harney claimed that he could not remember whether he had made
certain statements attributed to him in the articles, so he deferred to the articles.
Petitioners later attempted to depose, in an apparent effort to impeach Trooper Kennedy and other law
enforcement officers who had given statements inconsistent with those attributed to Trooper Harney in the
Review-Journal articles. At his deposition, Puit refused to answer questions by citing the reporter's privilege as
conferred by NRS 49.275, Nevada's news shield statute.
Subsequently, petitioners filed a motion to compel Puit to answer the questions. Puit, who was joined by the
NHP, opposed the motion. The discovery commissioner concluded that both Nevada's news shield statute and
the First Amendment-based reporter's privilege required that petitioners' motion to compel be denied. The
district court adopted the discovery commissioner's report and recommendations, despite petitioners' objections.
Petitioners then filed a motion for reconsideration, which the district court granted. Although the district
court found the information sought by petitioners to be probative and relevant as impeachment evidence, it
determined that Puit could not be compelled to testify pursuant to Nevada's news shield statute. Accordingly, the
district court reaffirmed the discovery commissioner's report and recommendations.
Petitioners subsequently filed this original petition for writ of mandamus or prohibition, to which Puit has
filed an answer.
2

__________

2
With regard to the liability of the state and the NHP, petitioners' strategy at trial appears to include arguing
that once Trooper Kennedy determined that Estrada was intoxicated, he was required to place Estrada under
civil protective custody instead of driving Estrada home. NRS 458.270(1) provides that, generally, a person
who is found in any public place under the influence of
116 Nev. 88, 93 (2000) Diaz v. Dist. Ct.
DISCUSSION
I. Extraordinary relief
[Headnotes 1, 2]
A writ of mandamus may be issued to compel the performance of an act that the law requires as a duty
resulting from an office, trust or station, or to control an arbitrary or capricious exercise of discretion. See
State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 662 P.2d 1338 (1983); Round Hill Gen. Imp. Dist. v.
Newman, 97 Nev. 601, 637 P.2d 534 (1981). A writ of prohibition, in turn, is the proper remedy to restrain a
district [court] from exercising a judicial function without or in excess of its jurisdiction. Smith v. District
Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). Either writ will only issue where there is not a plain,
speedy and adequate remedy in the ordinary course of law. NRS 34.170; NRS 34.330.
[Headnotes 3, 4]
Generally, extraordinary relief is unavailable to review discovery orders. See Hetter v. District Court, 110
Nev. 513, 515, 874 P.2d 762, 763 (1994). Thus, we could conclude that petitioners have a plain, speedy and
adequate remedy at law that would preclude extraordinary relief, since petitioners may challenge the district
court's order in an appeal from an adverse final judgment. See Clark County Liquor v. Clark, 102 Nev. 654, 730
P.2d 443 (1986). Nevertheless, where an important issue of law needs clarification and public policy is served
by this court's invocation of its original jurisdiction, . . . consideration of a petition for extraordinary relief may
be justified. Business Computer Rentals v. State Treas., 114 Nev. 63, 67, 953 P.2d 13, 15 (1998). One such
instance is when a writ petition offers this court a unique opportunity to define the precise parameters of [a]
privilege conferred by a statute that this court has never interpreted. Ashokan v. State, Dep't of Ins., 109 Nev.
662, 667, 856 P.2d 244, 247 (1993). We conclude that this writ petition raises an issue of first impression that
implicates a matter of public importance: Whether a journalist waives the protection of the news shield statute
with respect to the contents of an article that has been published. Accordingly, today we address this petition.
II. Nevada's news shield statute
Nevada's news shield statute is one of the most liberal in the country. See Leslye deRoos Rood and Ann K.
Grossman, The Case for a Federal Journalist's Testimonial Shield Statute,
__________
alcohol, in such a condition that he is unable to exercise care for his own health or safety or the health or safety
of others, must be placed under civil protective custody by a peace officer.
116 Nev. 88, 94 (2000) Diaz v. Dist. Ct.
Case for a Federal Journalist's Testimonial Shield Statute, 18 Hastings Const. L.Q. 779 (1991) (comparing the
protection provided by various state news shield statutes) [hereinafter Testimonial Shield Statute]. The statute
confers upon journalists an absolute privilege from disclosure of their sources and information in any
proceeding. Specifically, the shield statute provides in pertinent part:
No reporter . . . of any newspaper . . . may be required to disclose any published or unpublished
information obtained or prepared by such person in such person's professional capacity in gathering,
receiving or processing information for communication to the public, or the source of any information
procured or obtained by such person, in any legal proceedings, trial or investigation:
1. Before any court, grand jury, coroner's inquest, jury or any officer thereof.
NRS 49.275(1).
In 1971, two years after enacting the first shield law, which preceded NRS 49.275, Nevada's legislature
enacted NRS 49.385, which governs waiver of privileges by voluntary disclosure. The waiver statute provides:
1. A person upon whom these rules confer a privilege against disclosure of a confidential matter
waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or
consents to disclosure of any significant part of the matter.
2. This section does not apply if the disclosure is:
(a) Itself a privileged communication; or
(b) Made to an interpreter employed merely to facilitate communications.
NRS 49.385(1) and (2)(a) and (b).
[Headnotes 5-8]
Questions of statutory interpretation are subject to this court's independent review. See State, Emp. Sec. Dep't
v. Holmes, 112 Nev. 275, 283, 914 P.2d 611, 616 (1996). It is well settled in Nevada that words in a statute
should be given their plain meaning unless this violates the spirit of the act. McKay v. Bd. of Supervisors, 102
Nev. 644, 648, 730 P.2d 438, 441 (1986). [N]o part of a statute should be rendered nugatory, nor any
language turned to mere surplusage, if such consequences can properly be avoided.' Paramount Ins. v. Rayson
& Smitley, 86 Nev. 644, 649, 472 P.2d 530, 533 (1970) (alteration in original) (quoting Torreyson v. Board of
Examiners, 7 Nev. 19, 22 (1871)). Thus, [w]here a statute is clear on its face, a court may not go beyond the
language of the statute in determining the legislature's intent."
116 Nev. 88, 95 (2000) Diaz v. Dist. Ct.
beyond the language of the statute in determining the legislature's intent. McKay, 102 Nev. at 648, 730 P.2d at
441.
[Headnote 9]
Petitioners contend that Puit waived the shield statute's protection by identifying his sources and quoting the
sources directly in his articles. Petitioners insist that no confidential information is being sought from Puit.
Rather, petitioners are allegedly seeking to ascertain whether statements attributed to Trooper Harney in the
published news articles were in fact made by him and whether the statements are accurate, since Trooper Harney
testified that he cannot recall what he said and deferred to the Puit articles. Petitioners insist that several of the
statements in the articles constitute admissions that are directly relevant to the issue of liability against the state
and the NHP and that the statements also impeach testimony given by other law enforcement personnel.
Puit points out that Nevada's news shield statute protects both published and unpublished information from
disclosure. According to Puit, if publication constitutes waiver of the reporter's privilege, then the word
published, as found in NRS 49.275, would be rendered meaningless. Moreover, Puit maintains that even if the
waiver statute could apply to the news shield statute, the publication of information by a reporter to the public
in the course of his professional activities is, itself, a privileged communication[,] and therefore, an exception to
the waiver statute applies. Puit asserts that [s]ince Nevada's Shield Law applies to published' information'
prepared by' a reporter, the law obviously applies to published newspaper articles. The Nevada Press
Association agrees with Puit's position.
3
In its amicus curiae brief, it contends that had the legislature intended
that the reporter's privilege apply only to unpublished and confidential information, the legislature would have
specifically excluded the word published from the statute.
This court has previously held that the news shield statute only applies to confidential information and can be
waived by voluntary disclosure. Newburn v. Howard Hughes Medical Institute, 95 Nev. 368, 594 P.2d 1146
(1979); accord Las Vegas Sun v. District Court, 104 Nev. 508, 761 P.2d 849 (1988).
In Newburn, we considered whether the news shield statute is waived when a news reporter voluntarily
discloses information. There, the news reporter, Newburn, met with representatives of Howard Hughes' estate in
April 1978, and answered questions with respect to information he had obtained concerning the existence of
Hughes' will.
__________

3
On April 13, 1999, this court granted the Nevada Press Association's motion for leave to file an amicus
curiae brief and directed the clerk of this court to file the brief. See NRAP 29.
116 Nev. 88, 96 (2000) Diaz v. Dist. Ct.
tence of Hughes' will. Newburn, 95 Nev. at 370, 594 P.2d at 1147-48. Later, when Newburn appeared for a
deposition regarding matters disclosed during the April 1978 meeting, he asserted the reporter's privilege and
declined to answer questions. Id., 594 P.2d at 1148. The party taking Newburn's deposition moved for an order
to compel discovery. Id. In granting the motion, the district court found that Newburn had waived any claim of
privilege by voluntarily disclosing the information at the April 1978 meeting. Id. at 371, 594 P.2d at 1148.
Newburn refused to comply with the district court's order and was subsequently found in contempt. Id. at 370,
594 P.2d at 1148.
On appeal, Newburn contended that Nevada's news shield statute was absolute and not subject to waiver
under NRS 49.385. Id. at 371, 594 P.2d at 1148. Moreover, Newburn argued that the information he obtained
was itself privileged and therefore not subject to the waiver provisions of NRS 49.385 because he was engaged
in investigative reporting at the time he received it. Id. at 372, 594 P.2d at 1148-49.
In rejecting Newburn's contentions and affirming the district court's order, we first determined that [a]ll
privileges recognized by NRS Chapter 49 are explicitly subject to the waiver provisions of NRS 49.385. Id. at
371, 594 P.2d at 1148. Next, we focused on the confidential character of the information disclosed. Id. at 372,
592 P.2d at 1149. Specifically, this court considered whether the information obtained and disclosed by
Newburn was confidential and made the following observation:
The privilege against disclosure of a confidential matter is waived by a voluntary disclosure of any
significant part. NRS 49.385(1). If the information disclosed by Newburn during the April 6 interview
was not of a confidential character, he has no privilege to assert. On the other hand, if it was of a
confidential character, it is evident that he did not consider it to have been received in confidence since
he voluntarily disclosed that information and must be deemed to have waived any privilege conferred.
Id. Accordingly, this court concluded that either no privilege existed because the information was not
confidential, or that Newburn waived the reporter's privilege by voluntarily disclosing the information related to
Howard Hughes' estate. In his dissent, former Justice Gunderson stated that the majority opinion incorrectly
implies that whenever news personnel relate something they have discovered, in or out of print, a waiver results,
thereby subjecting such personnel to interrogation upon related' matters. I am confident our Legislature never
intended such a result. Id. at 374, 594 P.2d at 1150.
116 Nev. 88, 97 (2000) Diaz v. Dist. Ct.
Nearly a decade after Newburn, this court again addressed the waiver statute as applied to the news shield
statute, this time in the libel context in Las Vegas Sun. In Las Vegas Sun, Milton Schwartz brought a defamation
suit against Herman and Brian Greenspun and the Las Vegas Sun for a series of editorials which he claimed
defamed him. Las Vegas Sun, 104 Nev. at 510, 761 P.2d at 851. While preparing for trial, Schwartz sought
discovery of a wide range of materials relating to the editorials. Id. In response, Herman Greenspun cited
Nevada's news shield statute as granting him an absolute privilege from disclosure. Id. Schwartz moved the
district court for relief, and the district court ordered discovery of all materials relating to people, organizations
or documents mentioned in the editorials. Id. The defendants then filed a petition for a writ of prohibition in this
court. After considering the matter, we concluded that the discovery order [was] too broad and intrude[d] upon
the statutory privilege granted by the legislature. Id. Consequently, we granted the petition.
In reviewing the news shield statute's legislative history, we determined that the statute was intended to
protect journalists from forced disclosure of their confidential sources. Las Vegas Sun, 104 Nev. at 511, 761
P.2d at 851. More specifically, we stated that [t]he legislative history behind the current shield law illustrates
the legislators' concern with protecting confidentiality during and after the news gathering process. The
legislature enacted the first shield law in 1969. It protected news media representatives from forced disclosure of
their sources. Id. Unfortunately, however, this excursion into legislative history bypassed the plain language of
the news shield statute; namely, that journalists, when acting as such, are protected from disclosing any
information that is gathered or prepared for public dissemination. As the news shield statute's language is plain
and unambiguous, no legislative history analysis was warranted. McKay, 102 Nev. at 648, 730 P.2d at 441.
This court also iterated that [t]oday we again hold that a waiver under NRS 49.385 applies to the news
gatherers' privilege and describe more definite limitations on the breadth of waiver in matters relating to
discovery of information held by news media defendants. Las Vegas Sun, 104 Nev. at 513, 761 P.2d at 852. In
delineating the scope of the waiver statute, we further stated that publication of a source and the source's
statements waives the news shield statute's protection to the extent of the publication:
we conclude that the disclosure of a source and the attribution of remarks to that source is a clear cut
waiver of the shield privilege as to that name and those statements. When a newspaper or broadcaster
names its source and quotes statements made by that source, the underlying purpose of the shield law
is vitiated and the statutory privilege is waived.
116 Nev. 88, 98 (2000) Diaz v. Dist. Ct.
the shield law is vitiated and the statutory privilege is waived. There is no claim of confidentiality to be
made under these circumstances, as conceded by petitioners at the appeal hearing. [Footnote omitted.]
Therefore, during the discovery process, news media litigants can properly be required to admit and
document the precise matters disclosed in their publications or broadcasts.
Id., 761 P.2d at 852-53 (citations omitted).
The Newburn and Las Vegas Sun decisions suggest that confidentiality is a key consideration in determining
whether the statutory news shield privilege has been waived. Both opinions fail, however, to recognize the
distinction between privileges relating to confidential communications, and the reporter's privilege, in
determining whether the waiver statute applies.
[Headnote 10]
Privileges relating to confidential communications, such as those between attorney and client, between
doctor and patient, and between spouses, shield the confidentiality of communications within special
relationships and are not designed or intended to assist the fact-finding process or to uphold its integrity. See
John W. Strong, McCormick on Evidence, 72, at 268-269 (4th ed. 1992). These privileges are justified by the
public's interest in encouraging socially useful communications and by certain notions of legitimate privacy
expectations. See generally Developments in the LawPrivileged Communications, 98 Harv. L. Rev. 1450
(1985) (examining the evolution of evidentiary privileges in American law) [hereinafter Privileged
Communications]. Accordingly, confidential communications made between persons in certain special
relationships are privileged from compelled disclosure. Nevada's legislature has expressly recognized such
privileges. See NRS 49.095 (attorney-client privilege); NRS 49.185 (accountant-client privilege); NRS 49.209
(psychologist-patient privilege); NRS 49.225 (doctor-patient privilege); NRS 49.247 (therapist-patient
privilege); NRS 49.252 (social worker-client privilege); NRS 49.295 (spousal privilege).
4
Generally, privileges
relating to special relationships can be waived by the source of the confidential
information, whose identity is usually known.
__________

4
Nevada's legislature also recognizes a medical or dental peer-review privilege as set forth in NRS 49.265.
Doctrinally and analytically the peer-review privilege raises distinct concerns from the special relationship
privileges cited above. Most notably, unlike the special relationship privileges which protect personal privacy
interests that generally affect the great majority of society, the peer-review privilege protects the underlying
needs of the institution. See Privileged Communications at 1594. Twice this court has addressed the scope of
Nevada's peer-review privilege. See Columbia/HCA Healthcare v. Dist. Court, 113 Nev. 521, 936 P.2d 844
(1997) (holding occurrence reports are not exempt from discovery); Ashokan v. State, Dep't of Ins., 109 Nev.
662, 856 P.2d 244 (1993) (holding records acquired without recourse to discovery
116 Nev. 88, 99 (2000) Diaz v. Dist. Ct.
relating to special relationships can be waived by the source of the confidential information, whose identity is
usually known. See Carl C. Monk, Evidentiary Privilege for Journalists' Sources: Theory and Statutory
Protection, 51 Mo. L. Rev. 1, 49 (1986) (examining the reporter's privilege in state and federal jurisprudence)
[hereinafter Evidentiary Privilege].
[Headnote 11]
In contrast, the reporter's privilege does not arise strictly as a result of confidence or a special relationship.
This privilege arises when a journalist gathers information within his or her professional capacity for the purpose
of dissemination. See NRS 49.275. The policy rationale behind this privilege is to enhance the newsgathering
process and to foster the free flow of information encouraged by the First Amendment to the U.S. Constitution.
See Evidentiary Privilege at 49. Accordingly, the privilege from compelled disclosure belongs to the journalist,
not the source, who may be unidentified.
The Newburn and Las Vegas Sun courts' misdirected focus on confidentiality is understandable, since the
news shield statute's history illustrates that the legislature was originally concerned with protecting the
confidentiality of reporters' sources. Additionally, the waiver statute expressly provides that the privilege
against disclosure of . . . confidential matter[s] is subject to waiver. NRS 49.385(1) (emphasis added).
Notwithstanding, the news shield statute's plain language provides that the privilege against compelled
disclosure applies to published as well as unpublished information.
[Headnote 12]
As noted, the waiver statute speaks only to confidential information, the type of information that is pertinent
in analyzing privileges related to confidential communications within special relationships. We therefore
conclude that the waiver statute was intended, by its plain language, to apply to these types of privileges. The
statute's exceptions in subsection 2 underscore our conclusion: the waiver statute does not apply if the disclosure
of a confidential matter is . . . [i]tself a privileged communication[ ] or . . . [is] [m]ade to an interpreter
employed merely to faciliate communications. NRS 49.385(2)(a) and (b). Privileged communication is a term
of art used to describe [those statements made by certain persons within a protected relationship . . . which the
law protects from forced disclosure. Black's Law Dictionary 1198 (6th ed. 1990). Thus, a confidential
matter" is not subject to compelled disclosure if it is divulged in the context of another
protected relationship.
__________
proceedings are not exempt from discovery). Today, we need not and do not address whether the waiver statute
applies to the peer-review privilege.
116 Nev. 88, 100 (2000) Diaz v. Dist. Ct.
tial matter is not subject to compelled disclosure if it is divulged in the context of another protected
relationship. See Cheyenne Construction v. Hozz, 102 Nev. 308, 720 P.2d 1224 (1986) (holding in an action for
breach of contract, that where plaintiff's attorney testified as to his dealings with defendant, plaintiff did not
waive the privilege to refuse to disclose and prevent others from disclosing confidential communications
between plaintiff and his attorney). Similarly, a confidential communication is not rendered discoverable if made
through an interpreter. See NRS 49.385(2)(b).
[Headnote 13]
While confidentiality may be one important factor in communications between a journalist and the source of
information, confidentiality is not the defining factor in the existence of the reporter's privilege, nor does
confidentiality play a role in determining whether a reporter has waived the privilege. The news shield statute
protects all information, not just confidential information, which is obtained by a reporter in his or her capacity
as a journalist and which is intended for dissemination. If the waiver statute applied to the news shield statute, as
the Newburn and Las Vegas Sun courts determined, then by publishing confidential information, a reporter has
waived the news shield privilege as to that information. Such a result vitiates the plain language of the news
shield statute, which protects published information from compelled disclosure. Accordingly, we conclude that
the waiver statute does not apply to the privilege created by the news shield statute. Instead, as discussed above,
the waiver statute is limited to those privileges that center on confidential communications.
Our reading of the statutory provisions at issue in this petition is consistent with the public policy rationale
behind the news shield statute. Nevada's news shield statute serves an important public interest and provides
absolute protection against compelled disclosure to ensure that through the press, the public is able to make
informed political, social and economic decisions. See Testimonial Shield Statute at 801.
[Headnote 14]
As our Newburn and Las Vegas Sun opinions applied the waiver statute to the news shield statute, and
attempted to define the scope of the news shield statute based on confidentiality, we must overrule Newburn and,
in large part, Las Vegas Sun. Newburn's conclusion, that a reporter who voluntarily discloses information
obtained in the newsgathering process waives any privilege with respect to that information, cannot withstand
scrutiny when examined in light of the news shield statute's broad and unambiguous protection of
published information.
116 Nev. 88, 101 (2000) Diaz v. Dist. Ct.
protection of published information.
5
Similarly, Las Vegas Sun is overruled to the extent that it mirrors
Newburn's analysis of confidentiality and waiver. Nevertheless, we reaffirm our ruling in Las Vegas Sun as it
pertains to actions for libel. In particular, as we stated in that opinion, once a media litigant has invoked the
protection of the news shield statute to resist discovery, the defendant may not later rely on the privileged
information as a defense.
6
Las Vegas Sun, 104 Nev. at 514, 761 P.2d at 853-54.
[Headnote 15]
We emphasize that our decision today extends protection only to the journalist's newsgathering and
dissemination activities within the journalist's professional capacity. Nevada's news shield statute provides no
protection for information gathered in other capacities. We further recognize that although the news shield
statute provides an absolute privilege to reporters engaged in the newsgathering process, there may be certain
situations, e.g., when a defendant's countervailing constitutional rights are at issue, in which the news shield
statute might have to yield so that justice may be served.
As a final point, we note that in litigation such as the underlying case, where the story has been widely
disseminated, an effort to use the news media to produce evidence beneficial to a litigant is not a function of the
news media, and the shield statute protects it from such abuse.
CONCLUSION
[Headnote 16]
Nevada's news shield statute is not limited to confidential sources, but includes any source. The shield
statute covers both published and unpublished information, and includes both the information obtained and the
source of the information. Thus, Nevada's waiver statute does not apply with respect to the
news shield statute.
__________

5
The Newburn court concluded that the record supported the district court's finding that Newburn was not
gathering information for the purpose of dissemination. Newburn, 95 Nev. at 372, 594 P.2d at 1149. Ostensibly,
the Newburn court could have determined that since Newburn did not obtain the information regarding Hughes'
will with the intent to publish it, that Newburn was exempt from the protection of the shield statute. In overruling
Newburn, we do not intend to suggest that any voluntary disclosure of information by a reporter falls within the
definition of published under the statute, only that the dissemination in this case clearly was protected
publication. Whether Newburn's conduct was within the definition of published was not adequately discussed
in the Newburn decision, and we decline to address the issue today.

6
Moreover, to the extent that a plaintiff in a defamation action is required to prove that a media litigant either
knew that the published information was false or acted in reckless disregard of the truth, an assertion of the
shield statute may result in discovery sanctions.
116 Nev. 88, 102 (2000) Diaz v. Dist. Ct.
Nevada's waiver statute does not apply with respect to the news shield statute. Under Nevada law, a journalist
does not waive any rights or privileges by publication.
Accordingly, our intervention by way of extraordinary relief is not warranted, and we deny this petition.
7

Rose, C. J., and Becker, J., concur.
8

Maupin, J., with whom Shearing and Agosti, JJ., agree, concurring:
We agree that the petition for writ of mandamus or prohibition should be denied. Subject to the reservations
articulated by the majority opinion that do not apply to this case, the language of NRS 49.275 is plain and
comprehensive: No reporter . . . may be required to disclose any published or unpublished information obtained
in [a professional capacity] . . . in any legal proceedings . . . . This language clearly applies to the deposition
questioning of Glen Puit, the real party in interest in the underlying matter. The district court properly denied the
motion to compel.
We also conclude that there are other important reasons why we should not grant extraordinary relief in this
matter.
1

The instant petition is one of three applications for extraordinary relief brought by these petitioners
challenging separate orders entered by the district court in the underlying matter. All were lodged within a
six-month time frame. One of the petitions involved a clearly valid denial of a motion for partial summary
judgment. The second challenged a refusal to disqualify opposing counsel. We denied intervention in both of the
other matters. It is only this court's desire to clarify the rights of press representatives under the shield statute that
warrants more specific consideration of this third application.
2

__________

7
We need not address Puit's first amendment argument. See Director, Dep't Prisons v. Arndt, 98 Nev. 84, 86,
640 P.2d 1318, 1320 (1982) (noting that [i]t is well settled that this court will not address constitutional issues
unless the[y] are requisite to the disposition of a case).

8
The Honorable Cliff Young, Justice, voluntarily recused himself from participation in the decision of this
matter.

1
This matter was originally submitted to the southern panel of this court for decision without oral argument. I
was against intervention at that time for the reasons set forth below in this separate opinion. This would have left
in place the protections extended to the real party in interest by the district court.

2
In one of the separate orders we admonished counsel with regard to these applications. The resources of the
court should not be routinely expended on an interlocutory basis to address grievances with orders handed down
in the ordinary course of district court litigation. Such matters should be resolved on direct appeal unless the
standards for extraordinary relief can be met.
116 Nev. 88, 103 (2000) Diaz v. Dist. Ct.
The litigation that is the subject of the instant petition for extraordinary relief arises from a terrible motor
vehicle accident involving multiple fatalities. Petitioners are the heirs of the persons killed in that accident. The
facts bearing on this application are set forth below.
Responding to a dispatch call shortly after midnight on September 21, 1996, Nevada Highway Patrol
Trooper John Kennedy found Michael Estrada outside of his vehicle sitting on the side of a limited access
freeway in Clark County, Nevada. Based upon his observations and conversations with Estrada, Trooper
Kennedy concluded that Estrada was intoxicated. Not observing Estrada behind the wheel, Trooper Kennedy
ordered Estrada's nearby vehicle towed and took Estrada to his place of residence. At his deposition, Kennedy
conceded his belief that Estrada was under the influence of alcohol. He also testified that he was the only trooper
to respond to the scene where Estrada was located.
About eleven hours following the interaction with Trooper Kennedy, Estrada reclaimed his vehicle from the
towing company. Shortly thereafter, Estrada collided with a vehicle occupied by Felipe Diaz, Miguel Alcantara
and Eva Alcantara, all of whom were killed. Tests performed after the accident confirmed that Estrada was
intoxicated. An expert retained by the petitioners has opined that Estrada's blood alcohol content was about
.263% at the time of Trooper Kennedy's encounter with Estrada. Petitioners filed suit for wrongful death
damages against the towing company and the Nevada Highway Patrol. The crux of petitioner's lawsuit against
the highway patrol is the failure of Trooper Kennedy to take Estrada into protective custody under NRS
458.270.
3

__________
None of these applications meet these standards. See, e.g., State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358,
662 P.2d 1338 (1983).

3
The version of NRS 458.270 in effect as of the date of this accident stated:
1. Except as provided in subsection 7, a person who is found in any public place under the influence
of alcohol, in such a condition that he is unable to exercise care for his own health or safety or the health
or safety of others, must be placed under civil protective custody by a peace officer.
2. A peace officer may use upon such a person that kind and degree of force which would be lawful if
he were effecting an arrest for a misdemeanor with a warrant.
3. If a licensed facility for the treatment of persons who abuse alcohol exists in the community where
the person is found, he must be delivered to the facility for observation and care. If no such facility exists
in the community, the person so found may be placed in a county or city jail or detention facility for
shelter or supervision for his own
116 Nev. 88, 104 (2000) Diaz v. Dist. Ct.
Following the accident, real party in interest Glenn Puit, a Las Vegas Review-Journal news reporter, interviewed
Trooper Steve Harney, a Nevada Highway Patrol Public Information Officer, about the accident. Thereafter, Puit
wrote a series of articles, which, inter alia, quoted Harney as saying that troopers responded to the scene and
found that Estrada was highly intoxicated. At his deposition, Harney could not clearly recall what he said to
Puit with regard to Kennedy's version of his encounter with Estrada and that he, Harney, would defer to Puit as
to what was said in the interviews about these particular factual issues.
Petitioners contend that several of Harney's statements in the articles constitute admissions that are directly
relevant to the issue of liability against the State and the Nevada Highway Patrol. They primarily contend that
these statements refute Kennedy's testimony that he was alone and that Michael Estrada was not intoxicated
or, in his opinion, under the influence of any substance, particularly alcohol at the time of their interaction some
twelve hours before the accident.
4
They also contend that they have no other means by which to effect
this impeachment or corroborate the testimony of their expert on blood alcohol levels.
__________
health and safety until he is no longer under the influence of alcohol. He may not be required against his
will to remain in either a licensed facility, jail or detention facility longer than 48 hours.
4. An intoxicated person taken into custody by a peace officer for a public offense must immediately
be taken to a secure detoxification unit or other appropriate medical facility if his condition appears to
require emergency medical treatment. Upon release from the detoxification unit or medical facility, the
person must immediately be remanded to the custody of the apprehending peace officer and the criminal
proceedings proceed as prescribed by law.
5. The placement of a person found under the influence of alcohol in civil protective custody must
be:
(a) Recorded at the facility, jail or detention facility to which he is delivered; and
(b) Communicated at the earliest practical time to his family or next of kin if they can be located and
to the division or to a local alcohol abuse authority designated by the division.
6. Every peace officer and other public employee or agency acting pursuant to this section is
performing a discretionary function or duty.
7. The provisions of this section do not apply to any driver apprehended or arrested for the offense
of operating a vehicle under the influence of intoxicating liquor or controlled substances, pursuant to
Chapter 484 of NRS.
(Emphasis added.) Whether these provisions create a legal duty to third parties is not now before us.

4
This quotation is taken from the instant petition and petitioner's formal written Objection to Discovery
Commissioner's Report and Recommendations filed in district court.
The petition includes quotations from Harney's deposition wherein he denies the accuracy of Puit's article
stating that Estrada had been questioned by state troopers for suspicion of drunk driving. Harney explained the
inaccuracy by stating that the official response was to a person sitting outside
116 Nev. 88, 105 (2000) Diaz v. Dist. Ct.
other means by which to effect this impeachment or corroborate the testimony of their expert on blood alcohol
levels. This concern is not, in our view, justified.
First, Harney's purported statement to Puit that troopers responded to the original confrontation with
Estrada is clearly stated in the articles. Petitioners are entitled to cross-examine Harney about the use of the
plural rather than the singular in the article, i.e., whether, in fact, Harney told Puit that troopers, rather than a
trooper responded to the scene. The use of the plural in the article and the significance of the possibility that
more than one trooper responded to the original confrontation may then be argued by both sides to the ultimate
fact finder. It does not, however, seem to the objective observer that Puit's use of the term troopers in
discussing Harney's version of the highway patrol's first encounter with Estrada creates a clear contradiction of
Kennedy's testimony.
5
This does not necessarily mean that petitioners should not pursue the possibility of a
contradiction; however, it does not appear that this testimony is the lynchpin of petitioner's liability case against
the Nevada Highway Patrol. Certainly, an issue of this magnitude should not be the subject of a claim for
extraordinary relief.
Second, petitioners claim that Kennedy must be impeached on the question of Estrada's intoxication is most
surprising. Contrary to the portion of the petition quoted above, Kennedy unequivocally conceded his belief that
Estrada was drunk at the time of their interaction, twelve hours prior to the actual accident. The fact that
Kennedy did not use the term highly intoxicated in his testimony does not justify our intervention via
extraordinary writ to force a newspaper reporter to testify in violation of the state's shield law. Also, Kennedy
can be cross-examined as to whether Estrada's state of intoxication justified or mandated use of the protective
custody provisions of NRS 458.270.
6
Clearly, the evidence given by Trooper Kennedy confirms rather than
contradicts petitioner's expert testimony relative to Estrada's blood alcohol levels.
7
Finally, Harney is still
subject to cross-examination with regard to the articles and Nevada Highway Patrol policies with
regard to such situations.
__________
of a stopped vehicle. In any case, the questions posed by Trooper Kennedy to Estrada would certainly qualify as
inquiries in connection with possible drunk driving. Thus, petitioners do not cite this conflict as creating a need
for extraordinary relief in this case.

5
Harney testified at his deposition that his use of the term troopers, rather than trooper, was generic, i.e.,
that he always referred to NHP trooper responses in terms of troopers, even when only one officer was
involved.

6
See comments in note 3.

7
Petitioners contend below that the impeachment of Kennedy is important to corroborate their toxicology
expert. Again, Kennedy took Estrada home because he was intoxicated. In any event, the circumstances of
Kennedy's
116 Nev. 88, 106 (2000) Diaz v. Dist. Ct.
regard to the articles and Nevada Highway Patrol policies with regard to such situations.
In Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995), the United States Court of Appeals for the Ninth Circuit
discussed a situation in which it felt forced disclosure of press information might be appropriate within the
context of the First Amendment of the U.S. Constitution. The Ninth Circuit concluded that disclosure of press
materials should be the exception and not the rule:
[W]here information sought is not confidential, a civil litigant is entitled to requested discovery
notwithstanding a valid assertion of the journalist's privilege by a nonparty only upon a showing that the
requested material is: (1) unavailable despite exhaustion of all reasonable alternative sources; (2)
noncumulative; and (3) clearly relevant to an important issue in the case.
Shoen, 48 F.3d at 416.
8

In the present case, the evidence sought has only marginal importance in the matter pending in district court.
Alternatives available to these petitioners demonstrate that their claimed need for disclosure is far outweighed by
the need to protect the press under either the shield statute or the First Amendment to the U.S. Constitution.
CONCLUSION
We therefore conclude that the testimony sought from the real party in interest, Puit, is not so essential to
petitioner's lawsuit as to justify a grant of extraordinary relief from this court. Further, the repeated resort by
these petitioners to extraordinary remedies serves only to seek our micro-management of an ongoing piece of
district court litigation. We realize that this case is most important to the petitioners herein.
__________
encounter with Estrada leaves little doubt of the advanced state of Estrada's intoxication.
In this connection, petitioners alleged in the district court and allege here that it was later determined that
Estrada's blood alcohol level at the time of the encounter with Trooper Kennedy was .263%. Without
commenting on the validity of this finding by petitioner's expert, and certainly conceding Trooper Kennedy's
agreement that Estrada was intoxicated, it seems somewhat excessive to blithely state that a person's blood
alcohol level some twelve hours before testing has been determined. We raise this point only to underscore
what appears to be a tendency by petitioner's counsel to overstate propositions urged to us.

8
The Nevada shield statute provides greater protection to the press than that provided under the First
Amendment to the U.S. Constitution. Thus, it is unnecessary to resolve this matter on constitutional grounds.
However, an analysis of the First Amendment balancing test relied upon in Shoen underscores our reasons for
denying extraordinary relief.
116 Nev. 88, 107 (2000) Diaz v. Dist. Ct.
tant to the petitioners herein. However, the need for extraordinary relief has not been demonstrated in any of
their petitions.
9

____________
116 Nev. 107, 107 (2000) Nat'l Adv. Co. v. State, Dep't of Transp.
NATIONAL ADVERTISING COMPANY, a Delaware Corporation; and DONREY OF NEVADA, INC., a
Nevada Corporation, Appellants, v. THE STATE OF NEVADA, DEPARTMENT OF
TRANSPORTATION, Respondent.
No. 31570
February 2, 2000 993 P.2d 62
Appeal from an order setting amount of compensation to be paid in condemnation action. Second Judicial
District Court, Washoe County; Mills Lane, Judge.
State Department of Transportation (NDOT) brought condemnation action to acquire property for
construction of freeway extension and interchange, and advertising companies whose billboards were removed
sought compensation for value of their leasehold interests. The district court awarded advertising companies
compensation calculated under bonus value methodology advocated by NDOT. Advertising companies
appealed. The supreme court, Agosti, J., held that income generated by billboards should have been considered
in determining just compensation.
Reversed and remanded with instructions.
[Rehearing denied June 1, 2000]
[En banc reconsideration denied October 23, 2000]
Lionel Sawyer & Collins and Dan C. Bowen and Madelene C. Amendola, Reno, for Appellants Donrey and
National Advertising.
Husch & Eppenberger and Gregory R. Smith and JoAnn Tracy, St. Louis, Missouri, for Appellant National
Advertising.
__________

9
We also note that petitioners sought sanctions in district court against the real party in interest's counsel in
connection with his position that the shield statute protected him from having to testify in the matter below. The
repeated petitions for extraordinary relief, a spurious request for sanctions and what we perceive to be a chronic
tendency to overstate their positions seems to suggest that this is all part of an overly aggressive litigation
strategy. We can only express our hope that petitioner's counsel will reconsider his approach to the prosecution
of this case.
Frankie Sue Del Papa, Attorney General, and Samuel Coon, Senior Deputy Attorney General, Carson City;
Price & Zirulnik, Jackson, Mississippi, for Respondent.
1. Eminent Domain.
Advertising income generated from billboards should be considered in determining just compensation for condemned leasehold
interests when those billboards cannot be relocated to comparable, income-generating sites.
2. Eminent Domain.
Use of bonus value method of calculating value of advertising companies' ground leases in action for condemnation of leased land,
without considering advertising income generated from billboards, constituted error, where county ordinance restricting replacement of
existing billboards made it impossible for companies to place new billboards in comparable location.
Before Rose, C. J., Agosti and Leavitt, JJ.
OPINION
By the Court, Agosti, J.:
The issue in this condemnation case is how to value a billboard leasehold interest when the underlying
property has been condemned and the billboards cannot be relocated to a comparable site. We conclude
that, under such circumstances, the advertising rental income generated from such billboards should be
considered in determining the fair market value of the billboard leasehold interest.
FACTS
In August 1993, respondent Nevada Department of Transportation (NDOT) commenced a
condemnation action to acquire a portion of the Damonte Ranch in south Reno in order to extend the U.S.
395 freeway and to construct an interchange. Prior to the condemnation, appellants National Advertising
Company (National) and Donrey of Nevada, Inc. (Donrey) (collectively referred to as the Advertising
Companies) maintained billboards on the property to be condemned.
National entered into three written lease agreements with the landowners of Damonte Ranch
(Damontes), which allowed National to erect and maintain four illuminated billboard structures, one of
which was double-faced, on the land adjacent to U.S. 395. These leases commenced at various times from
late 1992 to mid-1993 and continued for initial terms of ten years. The leases granted National the option to
renew for a second term of ten years, and thereafter, the leases would automatically extend from year to
year until terminated by either party.
from year to year until terminated by either party. National had maintained most of these billboards on the
property in excess of twenty years under a prior lease agreement. National's billboards generated an annual
rental income of $58,836.00.
Donrey also entered into a written lease agreement with the Damontes, which allowed Donrey to install and
maintain two billboards on the land adjacent to U.S. 395. The lease commenced in October 1992 and contained
terms similar to those in National's leases. Donrey's illuminated, double-faced billboard generated an annual
rental income of $24,780.00.
The Advertising Companies had the right to maintain their billboards in place and receive the rental income
from advertisers for a minimum of twelve to fifteen years. The Advertising Companies' leasehold sites were
excellent locations for billboards, visible to all traffic moving into Reno and, in September 1993, exposed to
approximately 45,000 vehicles per day. All of the billboards were continually leased, and National had a waiting
list of advertisers for its billboards.
Pursuant to an order of occupancy, NDOT demanded that the Advertising Companies remove their
billboards to make way for construction. Both companies complied, salvaging what parts they could and
scrapping the rest. Because the billboard posts were installed in cement underground, removal required sawing
the poles off with a chain saw. The billboards were then disassembled with a blow torch. The salvage value for
the billboards ranged from a few hundred to one thousand dollars.
Since Washoe County Ordinance 105 restricts the replacement of existing billboards, the Advertising
Companies were unable to obtain permits to relocate their signs on the Damonte property or at any other location
along U.S. 395. The Advertising Companies were also unable to erect new signs in Washoe County to replace
the advertising rental income lost as a result of NDOT's condemnation action.
1
Thus, the condemnation of the
Damonte property forced the Advertising Companies to cancel their contracts with advertisers.
The Advertising Companies sought compensation for the value of their leasehold interests, including the
value of the billboard structures and the income generated from the billboards at the Damonte location.
2

__________

1
Since 1985, National has erected nine new billboards on an Indian Reservation in Wadsworth and one ten
miles south of Gardnerville on U.S. 395, while Donrey has constructed fifteen smaller poster face signs in the
Reno-Sparks area.

2
Pursuant to a settlement, NDOT compensated the Damontes for the increased value of their land due to the
income resulting from the leases to the Advertising Companies.
NDOT filed a motion for partial summary judgment, requesting that the district court find that the billboards
were personal property as a matter of law; therefore, the income generated from renting those billboards was
business income that should not be considered in determining just compensation for the leasehold interests. In
the alternative, NDOT requested that the district court exclude any evidence of the advertising rental income
since NDOT was not condemning the billboard structures. The district court denied NDOT's motion. While the
court found that the signs were removable trade fixtures and thus the personal property of the Advertising
Companies, the court nonetheless concluded that the advertising income generated by the billboards was rent
that should be considered in valuing the leasehold interests. In so doing, the court noted that [t]he interests of
the [Advertising Companies] sought to be extinguished under the State's power of eminent domain were
leasehold interests [which] . . . possess value for the purposes of this proceeding. Thus, the court rejected
NDOT's argument that because the billboards are removable trade fixtures, the Advertising Companies'
compensation should be limited to relocation costs.
The Advertising Companies next moved for partial summary judgment, requesting that the district court
determine that advertising rental revenues generated by the Advertising Companies' leasehold interests are
properly and legally included in the determination of just compensation, notwithstanding the district court's prior
ruling that the billboards were removable trade fixtures. The district court granted this motion. In granting the
motion, the court ruled that the Advertising Companies were entitled to recover the economic benefit they
derived from their leaseholds and that such economic benefit can only be determined by virtue of the income
that those signs generate and that said income should and must be taken into consideration to determine just
compensation.
The parties waived their right to a jury trial, and the case proceeded to a two-day bench trial. The sole issue
at trial was the amount of compensation owed to the Advertising Companies for the taking of their property
interests.
National's expert, real estate appraiser Dwight Pattison, used two methods to value National's leasehold
interests: (1) a comparable sales approach using a gross income multiplier and (2) an income capitalization
approach to value. Under the first approach, Pattison analyzed eight different sales transactions of comparable
billboard interests. Pattison testified that the most relevant transaction was Leonard Outdoor Advertising
Company's (Leonard) purchase of twenty leasehold locations within a few miles of National's billboards.
Pattison testified that the leases held by the seller in that transaction were inferior to National's
leases in that many had shorter remaining terms at the time of Leonard's purchase.
seller in that transaction were inferior to National's leases in that many had shorter remaining terms at the time of
Leonard's purchase. The sales contracts revealed that Leonard paid approximately four times the annual gross
income generated by each sign location to acquire permits to erect the billboards, the billboard structures, the
leaseholds, and the right to receive rental income from advertisers. Thus, Pattison concluded that a gross income
multiplier of four was appropriate to measure the fair market value of National's leasehold interests, i.e., a buyer
would pay four times the annual gross rental income to purchase National's leasehold interests. Thus, under the
first comparable sales approach, he concluded that the fair market value of National's leasehold interests was
$232,588.00, which is four times its annual gross income generated from the relevant billboards.
The second method, the income capitalization approach to value, is based upon the capitalization of the net
income produced by property using a rate of return that a prudent investor would expect upon his investment.
Under this approach, Pattison looked at the actual rent paid by advertisers for National's billboards and verified
that those rents were equivalent to market rent based upon rents paid for other comparable billboard locations.
He then determined the projected rental income and deducted standard expenses associated with the operation
and maintenance of such billboards. Finally, he determined the value of the billboard locations by taking the net
income and capitalizing it at a rate of return of fifteen percent, and concluded that the fair market value of
National's property interests was $217,581.00. Based on his conclusions under both valuation approaches,
Pattison determined that the fair market value of National's leasehold interests was $230,000.00.
Donrey's expert, Verne Cox, used the same two methods used by Pattison to value Donrey's leasehold
interests and determined that the fair market value of Donrey's leasehold interests was $99,000.00, which is four
times its annual gross income generated from the relevant billboards.
NDOT's appraiser, Steven Johnson, used the bonus value method of appraising the Advertising Companies'
property interests. The bonus value method focuses only on the value of the ground leases. Specifically, this
method calculates the difference between the fair market rent the Advertising Companies would pay to lease
comparable ground and the contract rent owed to the Damontes, projected over the remaining time the billboards
could be expected to remain on the property. In his analysis, Johnson assumed that National and Donrey's
billboards would have stayed in place for the remainder of their lease terms, fifteen and twelve years
respectively. Johnson considered the advertising rental income generated by the subject billboards,
income generated by the subject billboards, but only for the purpose of determining whether the ground rent
actually paid by the Advertising Companies was a market rate, since ground rent is typically based on a
percentage of advertising rental income generated by a particular billboard. Johnson did not consider advertising
rental income in determining the value of the subject leasehold interests because it was not part of his assignment
by NDOT. However, Johnson acknowledged that, on a prior occasion, he did use an income methodology and
considered the income derived from billboard advertising to appraise a billboard leasehold interest.
The district court ultimately entered its findings of fact, conclusions of law and order, wherein it adopted the
bonus value methodology advocated by NDOT. The district court repeated its prior ruling that income
generated from selling space on the outdoor signs is relevant to determine just compensation' and must be
considered to do substantial justice. However, the district court concluded that the advertising rental income
was business income and, thus, not compensable in this condemnation action. Instead, the court concluded that
the proper measure of value of the leasehold interests was the bonus value method. The court awarded the bonus
values arrived at by NDOT's appraiser, specifically, $36,800.00 to National and $14,300.00 to Donrey.
On appeal, the Advertising Companies argue that the district court failed to justly compensate them for the
most valuable right they lost as a result of the condemnation, the right to generate substantial rental income due
to the unique and valuable location of their billboards, by erroneously characterizing that income as business
income.
3
The Advertising Companies contend that while the bonus value method is not invalid per se, the
formula cannot justly compensate them in this case because it does not consider the lost advertising rental
income which the Advertising Companies cannot replace since the billboards cannot be relocated to a
comparable site within the market area.
DISCUSSION
Three recognized valuation methods in condemnation cases exist. These are the income capitalization
approach, the market approach and the cost approach.
4
Jurisdictions are divided as to which method
appropriately values a billboard leasehold interest.
__________

3
Business income is anticipated future profits.

4
The cost approach is the depreciated replacement or reconstruction cost of a billboard, together with the
bonus value of the owner's ground lease. Thus, the bonus value advocated by NDOT and adopted by the district
court is only a part of the cost approach. See 8A Nichols on Eminent Domain 23.04[4][a], at 52 (3rd ed.
1997, 1998). This method, however, is only valid when it is established that substitute, permitable sites exist in
the immediate market. Id.
which method appropriately values a billboard leasehold interest. Some courts focus on whether a billboard is
characterized as personalty or realty, as does NDOT, in determining whether advertising income should be
considered in assessing the value of leasehold interests, or in determining whether a billboard owner is entitled
to compensation at all. Those courts conclude that if a billboard is characterized as a trade fixture or personalty,
then either it is improper to consider the advertising income it generates, or the owner is not entitled to
compensation at all.
5

[Headnote 1]
Other courts conclude that the characterization of a billboard as either realty or personalty is an arbitrary
distinction, and that advertising income generated from billboards that cannot be relocated should be considered
in valuing leasehold interests so that owners will be justly compensated.
6

We conclude that this latter approach is the better means of awarding just compensation for condemned
leasehold interests when billboards cannot be relocated to comparable, income-generating sites. This approach is
espoused in 8A Nichols on Eminent Domain 23.03[5][a], at 37-42 (3d ed. 1997, 1998), which recognizes the
importance of location in the ability of a billboard to generate advertising income and the
difficulty in relocating billboards under restrictive regulations.
__________

5
See Nat'l Adver. v. North Carolina Dep't of Transp., 478 S.E.2d 248, 249-50 (N.C. Ct. App. 1996)
(concluding that a billboard owner did not have a compensable property interest in its billboard structure, which
was removable personal property as a matter of law); Creative Displays v. South Carolina Highway, 248 S.E.2d
916, 917-18 (S.C. 1978) (concluding that a billboard was personal property and thus not compensable); State v.
Teasley, 913 S.W.2d 175, 178 (Tenn. Ct. App. 1995) (concluding that a billboard was a trade fixture not
compensable in eminent domain, but the billboard owner was entitled to cost of removal and bonus value of the
lease under Tennessee statutory law).

6
See City of Scottsdale v. Eller Outdoor Adver. Co. of Arizona, 579 P.2d 590, 596-98 (Ariz. Ct. App. 1978)
(concluding that the income approach is the best method of valuation only when a billboard cannot be relocated
in a given market area because billboard locations are unique and it is virtually impossible to separate location
from the structure, even though the billboard is deemed personal property under the lease); Nat'l Adver. Co. v.
Florida Dept. of Transp., 611 So. 2d 566, 569-70 (Fla. Ct. App. 1993) (concluding that billboard replacement
cost was insufficient compensation where a billboard's location was unique and it could not be relocated; the
condemnor should have presented evidence of income in valuing the leasehold interest); City of Norton Shores
v. Whiteco Metrocom, 517 N.W.2d 872, 873 (Mich. Ct. App. 1994) (concluding that condemned leaseholds
were income-producing property for which income capitalization method was a valid means of estimating
market value, regardless of whether the billboards were trade fixtures or personal property); State of Minnesota
v. Weber-Connelly, Naegele, Inc., 448 N.W.2d 380, 383, 384-85 (Minn. Ct. App. 1989) (concluding that a state
statute permits compensation for lost rental income, and that the income approach for appraising billboards is
proper because the property was income producing and the billboards could not be relocated).
billboard to generate advertising income and the difficulty in relocating billboards under restrictive regulations.
Under the circumstances of this case, we believe that either the comparable sales method or the income
capitalization method would be a better means than the bonus value method of appraising the market value of the
Advertising Companies' lost interest. See Eller Outdoor Advertising, 579 P.2d at 598.
In this case, location was critical in the Advertising Companies' ability to generate advertising income. The
record shows that the Advertising Companies were unable to relocate their billboards to a comparable site within
Washoe County that would replace advertising income lost as a result of NDOT's condemnation action. The
income generated from the billboards should have been considered in determining the value of the Advertising
Companies' leasehold interests.
7
The bonus value approach does not sufficiently compensate the Advertising
Companies for their leasehold interests. As noted by the district court, the bonus value approach is based on the
assumption that the Advertising Companies may keep the benefit of their bargain with the Damontes if they can
relocate their billboards under a comparable lease at market value to another comparable site. The evidence in
this case, however, clearly establishes that these billboards were in valuable, unique locations, and that the
billboards could not be relocated to a comparable site within the market area.
[Headnote 2]
For the foregoing reasons, we conclude that the district court erred when it awarded the bonus value of the
Advertising Companies' ground leases and did not consider the advertising income generated by these billboards
in calculating the value of their leasehold interests.
8
We conclude that under the circumstances of this case the
income methodology should be used in order to fairly compensate the Advertising Companies.
__________

7
The Advertising Companies are not entitled, nor do they seek, to recover lost intangible business income. In
order to determine the value of the leasehold interests, however, the advertising rental income must be
considered under the income capitalization approach, which adjusts the anticipated net income to present value
through the capitalization process. 8A Nichols on Eminent Domain 23.04[4][b] at 54 (3d ed. 1997, 1998).

8
Because we conclude that the subject billboards cannot be relocated, we need not reach the issue of whether
the district court erred in finding that the billboards were removable trade fixtures as a matter of law. As
demonstrated above, we believe the threshold issue is whether the billboards can be relocated to a comparable
site within the market area such that the Advertising Companies can replace their lost advertising rental income.
If the billboards cannot be relocated to a comparable site, as is the case here, then the state must compensate the
billboard owners for the valuable interests taken, that is, the value of their leasehold interests, taking into account
the irreplaceable, lost rental income.
order to fairly compensate the Advertising Companies. We, therefore, reverse the district court's order and
remand with instructions to the district court to determine, consistent with this opinion, the amount of
compensation to be paid to the Advertising Companies.
Rose, C. J., and Leavitt, J., concur.
____________
116 Nev. 115, 115 (2000) Langon v. Washoe County
JOHN LANGON, Individually and in His Official Capacity as Sparks Constable, and WARD PETERSON,
Individually and in His Official Capacity as Reno Constable, Appellants, v. WASHOE COUNTY, a
Political Subdivision of THE STATE OF NEVADA, Respondent.
No. 32628
February 2, 2000 993 P.2d 718
Appeal from a district court order, entered on cross-motions for partial summary judgment, ruling that
Washoe County had authority to fix constables' maximum compensation and take excess fees, and from a money
judgment against the constables entered on the parties' stipulation. Second Judicial District Court, Washoe
County; Janet J. Berry, Judge.
County sought declaratory and injunctive relief requiring constables to pay to county fifty percent of fees
collected beyond maximum salary fixed by county, and constables brought counterclaim challenging the
maximum salary and fee-splitting. The district court entered partial summary judgment and money judgment for
county. Constables appealed. The supreme court held that county had statutory authority to set constables'
maximum salary and to required fee-splitting beyond the maximum salary.
Affirmed.
Thomas F. Riley, Reno, for Appellants.
Marshall, Hill, Cassas & deLipkau and A. Stanyan Peck, Reno, for Respondent.
The construction of a statute is a question of law subject to de novo review.
2. Statutes.
When more than one interpretation of a statute can reasonably be drawn from its language, it is ambiguous and the plain meaning
rule has no application.
3. Sheriffs and Constables.
Under statutes requiring boards of county commissioners to fix minimum compensation for constables, providing boards may
thereafter increase or change such compensation during the term but shall not reduce it below the minimum so established, and
providing that constables are entitled to receive fees for enumerated services, board had power to establish a maximum salary for
constables and to require constables to split fifty percent of any fees collected beyond the maximum salary. NRS 258.040(1), 258.125.
4. Stipulations.
District court, after determining that county had authority to set constables' maximum compensation and to require fee-splitting,
was not required to determine whether the authority was properly exercised before entering money judgment against constables for
fee-splitting with county, where stipulation for entry to consent judgment had stated that county and constables had agreed to entry of
judgment after determination of county's authority. NRS 258.040(1), 258.125.
5. Stipulations.
Constables, by stipulating that judgment would be entered after determination of county's authority to set constables' maximum
compensation and to require fee-splitting, waived their right to argue in the trial court and the appellate court that county's orders
amending the constables' compensation were not valid. NRS 258.040(1), 258.125.
Before Young, Agosti and Leavitt, JJ.
OPINION
Per Curiam:
FACTS
In July 1994, the Washoe County Board of County Commissioners (the Board) undertook a review of
the compensation of its elected constables. At the time, the constables received a minimum base salary of
$10,000.00 and kept all fees they collected from citizens for their services.
Washoe County's staff recommended amending the constables' compensation by providing that once the
constables' base salary and net revenues for services reached $55,000.00, the constables would then forward
fifty percent of the net fees collected to the county. In a July 1994 order, the Board approved the $10,000.00
base salary without mentioning fee splitting above $55,000.00.
After confusion arose as to the constables' compensation plan, the Board expressly restated the fee
sharing formula previously recommended by Washoe County's staff. On April 11, 1996, the Board issued an
amended order, expressly adopting the fee formula. On August 9, 1996, the Board voted to reaffirm its
understanding that the July 1994 order included the prior recommendations of its staff requiring the
constables to abide by the fee sharing formula.
Appellants John Langon, former Sparks constable, and Ward Peterson, former Reno constable, refused
Washoe County's demand to abide by the fee sharing formula and to provide financial reports for the purposes of
fee apportioning. Washoe County then brought suit against the constables seeking injunctive and declaratory
relief requiring a full accounting and payment of fifty percent of the fees collected above $55,000.00. The
constables counterclaimed, asserting that Washoe County was not authorized to cap their compensation and
require them to share fees with the county. The accounting issues were later resolved by consent decree, wherein
the constables acknowledged Washoe County's authority to examine and audit their office financial records.
In March 1998, the parties filed cross-motions for partial summary judgment concerning the substantive
issues. To avoid litigating the amount of fees in question, the parties entered a stipulation for entry of consent
judgment in April 1998. The stipulation provided that if Washoe County was found to have the authority to fix
the constables' maximum compensation, judgment could be entered against John Langon for $100,000.00 and
against Ward Peterson for $43,000.00.
In May 1998, the district court denied the constables' motion and granted Washoe County's motion. In June
1998, pursuant to the parties' previous stipulation, the district court entered judgment against Langon for
$100,000.00 and against Peterson for $43,000.00.
The constables now appeal the district court's ruling that Washoe County had the authority to set their
maximum compensation and the district court's entry of the money judgment.
DISCUSSION
The constables argue that the district court erred by ruling that NRS chapter 258 authorizes Washoe County
to require fee sharing after the constables' compensation reaches $55,000.00. Specifically, the constables argue
that the legislature, not the county, possesses the authority to fix their compensation, and that the legislature
granted Washoe County only the authority to set the constables' minimum compensation.
NRS chapter 258 governs matters concerning Nevada's constables. At issue in the present case is the
interpretation of two sections of chapter 258: NRS 258.040 and NRS 258.125. NRS 258.040 provides that the
boards of county commissioners shall fix the constables' minimum compensation in the year in which the
constables are elected. However, the section goes on to provide that the boards may thereafter increase or
change such compensation during the term but shall not reduce it below the minimum so established. See NRS
258.040(1). NRS 258.125 provides that constables are "entitled" to receive fees for certain
enumerated services.
provides that constables are entitled to receive fees for certain enumerated services.
1

[Headnote 1]
The construction of a statute is a question of law subject to de novo review. See State, Dep't of Mtr. Vehicles
v. Lovett, 110 Nev. 473, 476, 874 P.2d 1247, 1249 (1994). It is well established that when interpreting a statute,
[t]he meaning of words used in a statute may be sought by examining the context and by considering the
reason or spirit of the law or the causes which induced the legislature to enact it. The entire subject matter and
the policy of the law may also be involved to aid in its interpretation, and it should always be construed so as to
avoid absurd results.' Moody v. Manny's Auto Repair, 110 Nev. 320, 325, 871 P.2d 935, 938 (1994) (quoting
Welfare Div. v. Washoe Co. Welfare Dep't., 88 Nev. 635, 637-38, 503 P.2d 457, 458-59 (1972)).
[Headnote 2]
When more than one interpretation of a statute can reasonably be drawn from its language, it is ambiguous
and the plain meaning rule has no application. See Hotel Employees v. State, Gaming Control Bd., 103 Nev.
588, 591, 747 P.2d 878, 880 (1987). Further, no part of a statute should be rendered nugatory, nor any
language turned to mere surplusage, if such consequences can properly be avoided.' Paramount Ins. v. Rayson
& Smitley, 86 Nev. 644, 649, 472 P.2d 530, 533 (1970) (quoting Torreyson v. Board of Examiners, 7 Nev. 19,
22 (1871)). Courts must construe statutes . . . to give meaning to all of their parts and language . . . . The court
should read each sentence, phrase, and word to render it meaningful within the context of the purpose of the
legislation. Bd. of County Comm'rs v. CMC of Nevada, 99 Nev. 739, 744, 670 P.2d 102, 105 (1983).
[Headnote 3]
In the present case, the constables argue that a plain meaning construction of the statute is appropriate. They
assert that the use of the word minimum is a clear indication that the legislature did not intend that any board
of county commissioners would set the maximum compensation. Indeed, the constables provide dictionary
definitions of both the words minimum and maximum, noting that minimum is the opposite of the word
maximum. The constables argue further that the legislative intent must be to prohibit the setting of a maximum
compensation
__________

1
In a separate argument, the constables also argue that the word entitled in NRS 258.125 gives them an
absolute right to keep all fees collected. However, we conclude that a resolution of the present issue necessarily
resolves this additional issue.
for constables; otherwise, the legislature would have included explicit language granting such permission. We
conclude that the constables' argument is without merit and that a plain meaning reading of the statute is
inappropriate.
A plain meaning construction of the statute as proposed by the constables is flawed because there is
ambiguity between NRS 258.040 and NRS 258.125. If NRS 258.125 gives constables an absolute right to keep
all fees collected, as the constables propose (see footnote 1, supra), then NRS 258.040 cannot confer upon the
board of county commissioners the power to change the constables' compensation, if such a change would
affect the retention of fees. Such a reading would render portions of NRS 258.040 (and other sections of chapter
258) meaningless.
We conclude that to give full meaning to all of chapter 258, Washoe County must have the authority to
adjust the constables' compensation, without decreasing it below the established minimum. The very fact that the
legislature does not explicitly prohibit setting a maximum compensation indicates that the legislature intended to
empower the boards of county commissioners to maintain control of the constables' compensation, as long as the
compensation is not decreased below the established minimum. Under such a reading, NRS 258.125 necessarily
must permit the constables to collect the stated fees, but the county must ultimately establish how the fees are
divided.
Moreover, NRS 258.040 contemplates the setting of a constable's compensation through the use of a salary,
fees, or both. See NRS 258.040(1). Additionally, the statute explicitly states that the constables' compensation
may be changed during the constables' term. See id. This language is indicative of the conference upon the
counties the power to modify the constables' compensation, as long as it is not decreased below the established
minimum.
Furthermore, we conclude that it would be absurd and nonsensical to read NRS 258.040 as stating that the
county boards may change the constables' compensation, but only by increasing the minimum. If that were the
intent, it could have been clearly stated. The policy and spirit of this law is to establish a reasonable pay scale for
constables, while granting the various counties (as employers) the right to exert some degree of control over the
compensation provided.
Accordingly, we conclude that NRS chapter 258 must be read to allow the counties to adjust or fix the
constables' maximum compensation, and that NRS 258.125 does not grant the constables the absolute right to
keep all the fees they collect. Therefore, we conclude that the district court did not err in ruling that Washoe
County had the authority under NRS chapter 258 to require fee sharing of all fees collected once the
constables' compensation reached $55,000.00.
require fee sharing of all fees collected once the constables' compensation reached $55,000.00.
[Headnote 4]
Next, the constables argue that the district court erred by entering a money judgment against them before all
legal issues were resolved. They assert that once the district court ruled that Washoe County had the authority to
fix the constables' compensation, it then had to determine whether that authority was properly exercised before
entering a money judgment. We conclude that the constables' argument on this issue is without merit.
[Headnote 5]
As discussed above, the district court's ruling clearly resolved all issues concerning Washoe County's
authority under NRS chapter 258. Additionally, the stipulation for entry of consent judgment explicitly states
that in the event [the district court] enters an order or declaratory judgment finding that Washoe County has the
authority to fix the maximum compensation payable to Defendants Langon and Peterson . . . , then the parties
agree that judgment may be entered against Defendants . . . . The event contemplated in the parties' stipulation
occurred, and the district court entered judgment according to their agreement. Appellants provide no reasonable
justification explaining how the district court's entry of money judgment is in violation of the terms of the
stipulation. Accordingly, we conclude that the district court did not err in entering a money judgment against the
constables.
2

Accordingly, we affirm the district court's ruling in all respects.
__________

2
The constables also argue that the orders issued by the Board amending the constables' compensation were
not valid. We conclude that the constables waived their right to argue this issue when they stipulated to entry of
consent judgment. As the district court noted in its order dated August 6, 1998,
[c]ounsel for Defendants can not [sic] now attempt to insert additional terms or conditions which were
not explicitly contained in a valid stipulation. Additionally, the Court will not entertain further argument
on issues which should have been raised by Defendants [sic] counsel before the parties vacated their trial.
Counsel requested that all issues in this case be resolved by stipulation and/or the Court's decision on the
crossmotions . . . . Defendants cannot now avoid the consequences of the acts or omissions of their
attorney. See Pioneer Investment Services v. Brunswick Associates, 507 U.S. 380, 396 (1993).
We agree with the district court and decline to address this issue.
____________
116 Nev. 121, 121 (2000) Burgess v. Storey County
DAVID BURGESS, Individually, and DAVID BURGESS, dba OLD BRIDGE RANCH, Appellant, v.
STOREY COUNTY BOARD OF COMMISSIONERS; STOREY COUNTY LICENSING BOARD;
and STOREY COUNTY SHERIFF, Respondents.
No. 32634
February 2, 2000 992 P.2d 856
Appeal from an order denying appellant's petition for a writ of mandamus. First Judicial District Court,
Storey County; Michael E. Fondi, Judge.
Brothel owner filed petition seeking writ of mandamus compelling board of county commissioners to
reinstate brothel license. The district court denied petition, and owner appealed. The supreme court held that (1)
failure to give owner notice that his alleged association with motorcycle gang was basis upon which board
sought to revoke license violated owner's due process rights, and (2) revocation of license based solely upon
owner's alleged association with motorcycle gang violated owner's First Amendment right of free association.
Roderic A. Carucci and Terry J. Thomas, Reno, for Appellant.
Janet Hess, District Attorney, Storey County, for Respondents.
1. Mandamus.
A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust
or station, or to control an arbitrary or capricious exercise of discretion. NRS 34.160.
2. Mandamus.
The supreme court reviews a district court's denial of a petition for a writ of mandamus under the abuse of discretion standard.
The protections of due process attach only to deprivations of property or liberty interests. U.S. Const. amend. 14.
A protected property interest exists when an individual has a reasonable expectation of entitlement derived from existing rules or
understandings that stem from an independent source such as state law. U.S. Const. amend. 14.
Brothel owner had protected property interest in his brothel license, where county provided that board of county commissioners
could cancel license only after hearing and showing of good cause. U.S. Const. amend. 14.
6. Constitutional Law; Licenses.
Failure to give brothel owner notice that his alleged association with motorcycle gang was basis upon which board of county
commissioners sought to revoke his brothel license violated owner's due process rights. Owner had no opportunity to prepare to defend
himself against charges raised at license revocation hearing. U.S. Const. amend. 14.
All Americans have a right to associate for the purposes of engaging in those activities protected by the First Amendment, such as
speech, assembly, petition for the redress of grievances, and the exercise of religion. U.S. Const. amend. 1.
Infringements upon the right of free association may be justified by regulations adopted to serve compelling state interests,
unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.
Board of county commissioners had burden of showing compelling governmental interest sufficient to justify restricting brothel
owner's right to associate with motorcycle gang by revoking his brothel license on basis of that association. U.S. Const. amend. 1.
10. Constitutional Law; Licenses.
Board of county commissioners' revocation of brothel license, based solely upon brothel owner's alleged association with
motorcycle gang, violated owner's First Amendment right of free association, where board failed to show any criminal activity by
brothel or owner, and failed to demonstrate any other compelling state interest justifying license revocation. U.S. Const. amend. 1.
OPINION
Per Curiam:
Appellant David Burgess argues that the Storey County Licensing Board (Board) denied him due
process of law when it revoked his brothel license without properly notifying him that his association with the
Hell's Angels Motorcycle Club (Hell's Angels) would be discussed at the license revocation hearing.
Burgess also argues that the Board violated the First Amendment by revoking his brothel license because of
his association with the Hell's Angels. We agree with Burgess's contentions and conclude that the district
court abused its discretion by denying Burgess's petition for a writ of mandamus requiring the Board to
reinstate his license.
FACTS
Burgess has been licensed since 1983 to operate a brothel known as the Old Bridge Ranch in Storey
County. In May of 199S,
1998, the Board served Burgess with an order to show cause (OSC) why his brothel license should not be
revoked. The OSC ordered Burgess to appear before the Board on June 2, 1998, to respond to complaints which
include, but are not limited to motorcycle noise, harassment of local residents and failure to pay the applicable
license fee.
1

On June 2, 1998, Burgess and his attorney appeared before the Board. The hearing focused almost entirely
on Burgess's association with the Hell's Angels. Board Commissioner Charles Haynes admitted that concerns
regarding the Hell's Angels were not included in the OSC. Both Burgess's counsel and the Storey County District
Attorney requested a continuance so that Burgess could respond to the accusations concerning the Hell's Angels.
The Board ignored the request, and the hearing continued.
Throughout the hearing, Storey County Sheriff and Board Commissioner Robert Del Carlo testified that he
was concerned with the Hell's Angels' possible involvement with the Old Bridge Ranch. Haynes stated that the
Hell's Angels are known to be involved in organized crime, and anybody who does not realize that needs to
wake up and come into the 20th century. Del Carlo and Haynes introduced several pieces of evidence,
including downloaded internet articles describing illegal activities by the Hell's Angels; three unsigned criminal
informations regarding illegal activities by members of the Hell's Angels; a work permit application for Troy
Regas, a manager at Old Bridge Ranch; a letter detailing Troy Regas's prior conviction of possession of cocaine
with intent to distribute and Regas's association with the Hell's Angels. The only evidence directly concerning
Burgess was that on one occasion Burgess walked to a competing brothel while carrying a baseball bat. When
Haynes was asked what evidence existed to show that organized crime was involved with Old Bridge Ranch, he
replied, If it looks like a duck and smells like a duck and it walks like a duck, it's a duck.
Burgess testified that he was not a member of the Hell's Angels, but would like to be. Burgess is a member of
a Reno-based motorcycle club, which is attempting to patch over to the Hell's Angels. Burgess also testified
that the Hell's Angels did not meet at the Old Bridge Ranch, and that the Hell's Angels had no influence over the
operation of his business.
At the close of the hearing, the Board voted to revoke Burgess's brothel license. Burgess filed an emergency
petition for a writ of mandamus in district court, which was denied.
__________

1
Although the OSC alleged that Burgess failed to pay a license fee, this statement was a clerical mistake, as
respondents do not dispute that the license fee was paid prior to the license revocation hearing.
mandamus in district court, which was denied.
2
We determine that the district court abused its discretion when
it denied Burgess's petition for a writ of mandamus.
DISCUSSION
[Headnotes 1, 2]
A writ of mandamus is available to compel the performance of an act that the law requires as a duty
resulting from an office, trust or station, or to control an arbitrary or capricious exercise of discretion. See NRS
34.160; Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-604, 637 P.2d 534, 536 (1981). We review a
district court's denial of a petition for a writ of mandamus under the abuse of discretion standard. County of
Clark v. Doumani, 114 Nev. 46, 53, 952 P.2d 13, 17 (1998).
Procedural due process
Burgess contends that the OSC failed to provide proper notice that his association with the Hell's Angels
would be discussed at the hearing.
[Headnotes 3, 4]
The protections of due process attach only to deprivations of property or liberty interests. Tarkanian v.
Nat'l Collegiate Athletic Ass'n, 103 Nev. 331, 337, 741 P.2d 1345, 1349 (1987); Wedges/Ledges of California,
Inc. v. City of Phoenix, Arizona, 24 F.3d 56, 62 (9th Cir. 1994). A protected property interest exists when an
individual has a reasonable expectation of entitlement derived from existing rules or understandings that stem
from an independent source such as state law. Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972).
[Headnote 5]
Burgess argues that he has a property interest in his brothel license. We agree. Storey County's code
provides that [t]he board of county commissioners shall have the power to cancel the [brothel] license after
hearing and good cause shown. Storey County, Nevada, Code ch. 5.16.130(B). Because the revocation of a
brothel license in Storey County requires a hearing and a showing of good cause,
__________

2
After the state district court denied Burgess's petition for a writ of mandamus, Burgess filed a complaint in
United States District Court pursuant to 42 U.S.C. sections 1983 and 1988, alleging that the Board deprived
him of his constitutional rights. Based upon a determination that Burgess would likely succeed on his freedom
of association claim, the federal district court judge granted Burgess's motion for a preliminary injunction and
enjoined the enforcement of the license revocation pending a final resolution of the matter.
ing of good cause, Burgess had a reasonable expectation of entitlement to his brothel license. Therefore, we
conclude that Burgess had a protected property interest in the license.
[Headnote 6]
Having determined that the protections of due process attached to Burgess's brothel license, our next inquiry
is whether Burgess received notice that his alleged association with the Hell's Angels would be discussed at the
hearing and used as a basis to revoke his license. See Whitney v. State, Employment Security Dep't, 105 Nev.
810, 813, 783 P.2d 459, 460 (1989) (Basic concepts of fairness and due process require that one who is
charged with a wrongdoing be put on notice as to what conduct constitutes the wrong.). The Board admits that
the OSC does not mention Burgess's involvement with the Hell's Angels. We conclude that the Board failed to
provide Burgess with proper notice of what was to be discussed at the license revocation hearing. Therefore, the
Board deprived Burgess of his due process right to receive proper notice.
First Amendment
Burgess also contends that the Board violated the First Amendment by revoking his brothel license because
of his association with the Hell's Angels.
[Headnote 7]
The United States Supreme Court has stated that all Americans have a right to associate for the purposes
of engaging in those activities protected by the First Amendmentspeech, assembly, petition for the redress of
grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an
indispensable means of preserving other individual liberties. Roberts v. United States Jaycees, 468 U.S. 609,
618 (1984). The Ninth Circuit Court of Appeals has recognized an individual's First Amendment right to
associate with the Hell's Angels. United States v. Rubio, 727 F.2d 786, 791 (9th Cir. 1983).
[Headnotes 8, 9]
We recognize that Burgess's right to associate with the Hell's Angels is not absolute, however.
Infringements on that right may be justified by regulations adopted to serve compelling state interests,
unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of
associational freedoms. Roberts, 468 U.S. at 623. The Board has the burden to show a compelling
governmental interest to justify a restriction on Burgess's right to associate with the Hell's Angels. See Elrod v.
Burns, 427 U.S. 347, 362 (1976).
[Headnote 10]
Our review of the license revocation hearing transcript reveals that the Board revoked Burgess's brothel
license because of his association with the Hell's Angels. None of the evidence introduced at the hearing had
anything to do with the criminal activities of Burgess or the Old Bridge Ranch.
3
The Board failed to
demonstrate a compelling state interest to justify a restriction on Burgess's right to associate. Therefore, we
conclude that the Board violated the First Amendment when it revoked Burgess's brothel license because of his
association with the Hell's Angels.
CONCLUSION
We conclude that the Board deprived Burgess of his due process right to receive sufficient notice by failing
to notify Burgess that his association with the Hell's Angels would be discussed at the license revocation
hearing. The Board also violated the First Amendment by revoking Burgess's brothel license because of his
association with the Hell's Angels. For these reasons, we conclude that the district court abused its discretion
by denying Burgess's petition for a writ of mandamus. We reverse and remand this case to the district court so
that it may issue a writ of mandamus ordering the Board to reinstate Burgess's brothel license.
__________

3
The Board also contends that the revocation of the license was justified because on one occasion Burgess
walked to a competing brothel while carrying a baseball bat. Our review of the license revocation hearing
transcript, which is almost entirely dedicated to Burgess's association with the Hell's Angels, indicates that the
Board did not revoke Burgess's license on the basis of the baseball bat incident.
____________
116 Nev. 127, 127 (2000) State of Nevada v. Dist. Ct.
THE STATE OF NEVADA, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE JOSEPH T.
BONAVENTURE, District Judge, Respondents, and TIMOTHY JOHN HEDLAND, Real Party in
Interest.
No. 32936
BONAVENTURE, District Judge, Respondents, and STEVEN HENRY, Real Party in Interest.
No. 32937
NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE JOSEPH S.
PAVLIKOWSKI, District Judge, Respondents, and RYAN DAVID MELVIN, Real Party in Interest.
No. 32938
NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE MICHAEL L.
DOUGLAS, District Judge, Respondents, and JERRY EDMOND MILEY, Real Party in Interest.
No. 32939
PAVLIKOWSKI, District Judge, Respondents, and DEAN THOMAS MILLER, Real Party in Interest.
No. 32940
BONAVENTURE, District Judge, Respondents,
District Judge, Respondents, and REGINALD RAGSDALE, Real Party in Interest.
No. 32941
February 2, 2000 994 P.2d 692
Original petitions for writs of mandamus challenging orders of the district court affirming justices' courts'
orders dismissing charges of driving under the influence.
Motorists charged with driving under the influence (DUI) pleaded guilty in the justice court to general traffic
code infractions. Motorists moved to dismiss the DUI charges, on the theory of redundancy. The justice court
granted the motions. State appealed. The district court affirmed. State petitioned for writs of mandamus, and the
petitions were consolidated. The supreme court held that convictions for both DUI and a traffic infraction would
not be redundant.
Petitions granted (Docket Nos. 32936, 32938, 32939, 32940 and 32941); petition denied (Docket No.
32937).
[Rehearing denied April 19, 2000, for Docket Nos. 32936, 32938, 32939, 32940 and 32941]
[En banc reconsideration denied September 19, 2000, for Docket Nos. 32936, 32938, 32939, 32940 and
32941]
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and Owen
Porterfield and Bruce Nelson, Deputy District Attorneys, Clark County, for Petitioners.
John Glenn Watkins, Las Vegas, for Real Parties in Interest.
1. Certiorari; Habeas Corpus; Mandamus; Prohibition; Quo Warranto.
The power to issue writs of mandamus, certiorari, prohibition, quo warranto, and habeas corpus is part of the supreme court's
original jurisdiction. It is not merely auxiliary to the court's appellate jurisdiction. Const. art. 6, 4.
2. Mandamus.
Although a writ of mandamus does not lie to correct errors where action has been taken by the inferior tribunal, the writ may be
used to control an arbitrary or capricious exercise of discretion. NRS 34.160.
3. Mandamus.
Mandamus is an extraordinary remedy, and it is within the discretion of the court to determine if a petition will be considered.
NRS 34.160, 34.170.
4. Mandamus.
It was appropriate for supreme court to consider state's petition for writ of mandamus regarding district courts' determinations, in
their appellate capacity with respect to justice court decisions, that convictions for driving under the influence (DUI) would be
redundant to general traffic code infractions,
fic code infractions, a significant issue of statewide concern upon which the lower courts were split. Const. art. 6, 4; NRS
484.379(1).
5. Equity.
Laches is an equitable doctrine that may be invoked when delay by one party works to the disadvantage of the other, causing a
change of circumstances that would make the grant of relief to the delaying party inequitable.
6. Mandamus.
The doctrine of laches applies to a petition for a writ of mandamus.
7. Mandamus.
In deciding whether to apply the doctrine of laches to preclude consideration of a petition for writ of mandamus, a court must
determine whether: (1) there was an inexcusable delay in seeking the petition, (2) an implied waiver arose from petitioner's knowing
acquiescence in existing conditions, and (3) there were circumstances causing prejudice to respondent.
8. Mandamus.
Eleven-month delay in state's filing of petition for writ of mandamus, after district court had affirmed justice court's ruling that
convictions for driving under the influence (DUI) would be redundant to general traffic code infractions, warranted denial of the
petition under doctrine of laches. NRS 484.379(1).
9. Mandamus.
Five-month or six-month delay in state's filing of petitions for writs of mandamus, after district court had affirmed justice court's
rulings that convictions for driving under the influence (DUI) would be redundant to general traffic code infractions, did not warrant
denial of the petitions under doctrine of laches. NRS 484.379(1).
10. Criminal Law.
The issues regarding redundant convictions is whether the gravamen of the charged offenses is the same such that it can be said
that the legislature did not intend multiple convictions, and whether the material or significant part of each charge is the same, even if
the offenses are not the same.
11. Criminal Law.
Where a defendant is convicted of two offenses that, as charged, punish the exact same illegal act, the convictions are redundant.
12. Criminal Law.
Gravamen of driving under the influence (DUI) was driving or being in actual physical control of vehicle while intoxicated, while
gravamen of rules of the road general traffic code infraction under state law or municipal ordinance was the manner of operating a
vehicle, without regard to whether the motorist was intoxicated, and thus, conviction for both DUI and a traffic infraction would not be
redundant. NRS 484.379(1).
13. Criminal Law.
The gravamen of an offense, for purposes of determining whether a conviction for the offense would be redundant to a
conviction for some other offense, typically is the material act being punished.
14. Indictment and Information.
Even if convictions for multiple offenses would be impermissibly redundant, the state still may charge all of the offenses in a
single case.
15. Criminal Law.
Where a defendant is facing multiple charges, a trial court is not required, over the state's objection, to accept a
guilty plea on one of the charges.
required, over the state's objection, to accept a guilty plea on one of the charges.
16. Criminal Law.
Courts have discretion to refuse a guilty plea. NRS 174.035(1).
17. Criminal Law.
If the court concludes there is a plea agreement between the parties, the court must conduct a hearing and consider seriously the
proffered plea.
18. Criminal Law.
Trial court had discretion to refuse motorists' guilty pleas to general traffic code infractions, where motorists had also been charged
with driving under the influence (DUI), but there were no plea agreements, the state expressly objected to the pleas, and conviction for
multiple offenses might have been redundant. NRS 174.035(1), 484.379(1).
19. Criminal Law.
A trial court has discretion to refuse a unilateral guilty plea to the lesser charge, where conviction for multiple offenses might be
redundant. NRS 484.379(1).
20. Criminal Law.
Justice courts were not required to enter an immediate sentence and conviction after accepting guilty pleas. NRS 173.125.
Before Rose, C. J., Young and Agosti, JJ.
OPINION
Per Curiam:
The state charged each of the real parties in interest with driving under the influence pursuant to NRS
484.379(1) and at least one traffic code infraction under NRS chapter 484 or a Clark County Ordinance. In
each case, the real party in interest appeared in justice's court and asked to plead guilty to the traffic code
infraction. The justices' courts accepted the guilty pleas over the state's objections and immediately imposed
sentence. Each real party in interest then moved to dismiss the DUI charge on the theory that conviction of
that charge would be redundant to the conviction for the traffic code infraction pursuant to this court's
decisions in Albitre v. State, 103 Nev. 281, 738 P.2d 1307 (1987) and Donahue v. City of Sparks, 111 Nev.
1281, 903 P.2d 225 (1995). The justices' courts granted the motions. On appeal, the district courts affirmed
the justices' courts' orders. The state filed the instant petitions for writs of mandamus challenging the lower
courts' decisions.
1

__________

1
By order on September 15, 1998, we consolidated these petitions and ordered the real parties in interest,
on behalf of respondents, to file an answer against issuance of the requested writs.
These petitions ask this court to determine whether conviction for a charge of driving under the influence in
violation of NRS 484.379(1) would be redundant to conviction for a general traffic code infraction. We
conclude that such convictions would not necessarily be redundant.
FACTS
Docket No. 32936 (Hedland)
The state charged real party in interest Timothy John Hedland by criminal complaint with two misdemeanor
offenses: driving and/or being in actual physical control while under the influence of intoxicating liquor in
violation of NRS 484.379(1) (count I) and failure to maintain travel lane in violation of NRS 484.305 (count II).
On May 21, 1997, the justice's court, Judge Pro Tem Swanson, accepted Hedland's offer to plead guilty to count
II, over the state's objection, and ordered Hedland to pay a fine. Hedland thereafter filed a motion to dismiss
count I. The state opposed the motion. On November 3, 1997, the justice's court, Judge Smith, granted the
motion. On appeal to the district court, Judge Bonaventure affirmed the justice's court's order, concluding that
the charges were redundant because they arose from the same traffic incident and, therefore, Hedland could not
be convicted of both charges.
Docket No. 32937 (Henry)
The state charged real party in interest Steven Henry by criminal complaint with two misdemeanor charges:
driving and/or being in actual physical control while under the influence of intoxicating liquor in violation of
NRS 484.379(1) (count I) and failure to use due care by failing to decrease speed when driving on wet
pavement in violation of NRS 484.363 (count II). On January 16, 1997, the justice's court, Judge Smith,
accepted Henry's offer to plead guilty to count II and imposed a fine.
2
Thereafter, Henry filed a motion to
dismiss count I. The state opposed the motion. On April 23, 1997, the justice's court granted the motion,
concluding that the state necessarily had to prove count II to prove count I. On appeal to district court, Judge
Bonaventure affirmed the justice's court's order, concluding that the charges were redundant.
Docket No. 32938 (Melvin)
The state charged real party in interest Ryan David Melvin by criminal complaint with three
misdemeanor charges:
__________

2
The documents before this court indicate that the state did not respond to Henry's request to plead guilty to
count II; however, it is not entirely clear whether a representative of the state was present at the time.
criminal complaint with three misdemeanor charges: driving and/or being in actual physical control while under
the influence of intoxicating liquor in violation of NRS 484.379(1) (count I), basic speeding in violation of NRS
484.361 (count II), and improper lane change in violation of NRS 484.305(1) (count III). On January 30, 1997,
Judge Pro Tem Swanson accepted Melvin's offer to plead guilty to counts II and III, over the state's objection,
and assessed a fine. Thereafter, Melvin filed a motion to dismiss count I. The state opposed the motion. On June
4, 1997, Judge Abbatangelo granted the motion without explanation. On appeal to district court, Judge
Pavlikowski affirmed the justice's court's order, concluding that the charges were redundant because they were
based on the same act of driving.
Docket No. 32939 (Miley)
The state charged real party in interest Jerry Edmond Miley by criminal complaint with two misdemeanor
charges: driving and/or being in actual physical control while under the influence of intoxicating liquor in
violation of NRS 484.379(1) (count I) and failure to yield right of way in violation of NRS 484.317 (count II).
On February 3, 1997, the justice's court, Judge Lippis, accepted Miley's offer to plead guilty to count II, over
the state's objection, and ordered Miley to pay a fine. Thereafter, Miley filed a motion to dismiss count I. The
state opposed the motion. On October 23, 1997, Judge Lippis granted the motion, concluding that the charges
arose from the same course of action. On appeal to district court, Judge Michael L. Douglas affirmed the
justice's court's order, concluding that conviction of the DUI charge would be redundant because both charges
arose from the same traffic incident.
Docket No. 32940 (Miller)
The state charged real party in interest Dean Thomas Miller by criminal complaint with two misdemeanor
violation of NRS 484.379(1) (count I) and unlawful manner of driving for driving through an intersection in a
right-turn-only lane in violation of NRS 484.377 and Clark County Ordinance 14.24.010 (count II).
3
On
January 30, 1997,
__________

3
The documents provided to this court regarding the charges against Miller are somewhat unclear. The
appendix filed with the petition includes an amended complaint that charges the two offenses set forth above,
plus two additional charges: speeding in violation of NRS 484.361 (count III) and failure to signal in violation
of NRS 484.343 (count IV). However, Miller only pleaded guilty to count II and there is no indication of how
counts III and IV were resolved.
Judge Pro Tem Swanson accepted Miller's offer to plead guilty to count II, over the state's objection, and
ordered Miller to pay a fine. Thereafter, Miller filed a motion to dismiss count I. On April 24, 1997, the justice's
court, Judge Abbatangelo, granted the motion. On appeal to district court, Judge Pavlikowski affirmed the
justice's court's order, concluding that the charges were redundant because they arose from the same act of
driving.
Docket No. 32941 (Ragsdale)
The state charged real party in interest Reginald Ragsdale by criminal complaint with two misdemeanor
violation of NRS 484.379(1) (count I) and failure to yield right of way in violation of NRS 484.315 and Clark
County Ordinance 14.32.070 (count II). On May 21, 1997, Judge Pro Tem Swanson accepted Ragsdale's offer
to plead guilty to count II, over the state's objection, and ordered Ragsdale to pay a fine. Thereafter, Ragsdale
filed a motion to dismiss count I. The state opposed the motion. On November 3, 1997, the justice's court, Judge
Smith, granted the motion. On appeal to district court, Judge Bonaventure affirmed the justice's court's order,
concluding that the charges were redundant because they arose from the same traffic incident.
DISCUSSION
Intervention by way of extraordinary relief
[Headnote 1]
The Nevada Constitution grants this court the power to issue writs of mandamus, certiorari, prohibition,
quo warranto, and habeas corpus. Nev. Const. art. 6, 4. The power to issue such writs is part of this court's
original jurisdiction; it is not merely auxiliary to our appellate jurisdiction. State of Nevada v. McCullough, 3
Nev. 202, 214-16 (1867).
[Headnotes 2, 3]
A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting
from an office, trust or station. NRS 34.160. Although this court has stated that a writ of mandamus does not lie
to correct errors where action has been taken by the inferior tribunal,
4
we have utilized mandamus to control an
arbitrary or capricious exercise of discretion, see Round Hill Gen. Imp. Dist. v. Newman, 97 Nev.
601,
__________

4
See, e.g., York v. Board of County Comm'rs, 89 Nev. 173, 509 P.2d 967 (1973); State v. District Court, 46
Nev. 25, 207 P. 80 (1922); State ex rel. Hetzel v. Board of Comm'rs, 8 Nev. 309 (1873); State of Nevada v.
Wright, 4 Nev. 119 (1868).
see Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). A writ of mandamus generally
will not issue, however, if the petitioner has a plain, speedy and adequate remedy in the ordinary course of law.
See NRS 34.170. Further, mandamus is an extraordinary remedy, and it is within the discretion of this court to
determine if a petition will be considered. See Poulos v. District Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178
(1982).
[Headnote 4]
This court has generally declined to entertain petitions for review of a lower court decision where that
decision is appealable. See Ashokan v. State, Dep't of Ins., 109 Nev. 662, 665, 856 P.2d 244, 246 (1993). In
Nevada, district courts have final appellate jurisdiction over cases arising in justice's court. Nev. Const. art. 6,
6; Tripp v. City of Sparks, 92 Nev. 362, 550 P.2d 419 (1976). We are not unmindful that entertaining petitions
for review of a district court decision where the district court was acting in its appellate capacity would
undermine the finality of the district court's appellate jurisdiction. Accordingly, as a general rule, we have
declined to entertain writs that request review of a decision of the district court acting in its appellate capacity
unless the district court has improperly refused to exercise its jurisdiction, has exceeded its jurisdiction, or has
exercised its discretion in an arbitrary or capricious manner.
Nonetheless, we have decided to exercise our constitutional prerogative to entertain the instant writ petitions.
Although loath to deviate from our general practice, we do so in these cases for the following reason: various
departments in the Justice's Court for the Las Vegas Township and the Eighth Judicial District Court have
reached different conclusions on the significant issues of statewide concern raised by these petitions. Thus, there
essentially is a split of authority amongst the lower courts. The only way this split can be resolved is for this
court to exercise its constitutional prerogative to entertain these writ petitions. See Jeep Corp. v. District Court,
98 Nev. 440, 443, 652 P.2d 1183, 1185 (1982) (where circumstances reveal urgency or strong necessity,
extraordinary relief may be granted); cf. State of Nevada v. Justice Court, 112 Nev. 803, 805 n.3, 919 P.2d 401,
402 n.3 (1996) (electing to entertain petition for writ of prohibition even though relief should have been sought
first in district court due to the exigent circumstances presented and because this case presented an unsettled
issue of statewide importance).
Laches
The real parties argue that the petitions are barred by the doctrine of laches. The real parties contend that
the petitions should have been filed immediately following the dismissal of the appeals in
district court.
have been filed immediately following the dismissal of the appeals in district court.
5

[Headnotes 5-7]
Laches is an equitable doctrine that may be invoked when delay by one party works to the disadvantage of
the other, causing a change of circumstances that would make the grant of relief to the delaying party
inequitable. Building & Constr. Trades v. Public Works, 108 Nev. 605, 610-11, 836 P.2d 633, 636-37 (1992).
The doctrine applies to a petition for a writ of mandamus. Buckholt v. District Court, 94 Nev. 631, 633, 584
P.2d 672, 673 (1978). In deciding whether to apply the doctrine to preclude consideration of such a petition, a
court must determine whether (1) there was an inexcusable delay in seeking the petition; (2) an implied waiver
arose from petitioners' knowing acquiescence in existing conditions; and, (3) there were circumstances causing
prejudice to respondent. Id. at 633, 584 P.2d at 673-74.
[Headnotes 8, 9]
Applying the factors set forth in Buckholt, we conclude that only the eleven-month delay in the filing of the
petition docketed in this court as Docket No. 32937 warrants imposition of the doctrine of laches to preclude
consideration of the petition. Accordingly, we deny the petition for a writ of mandamus in that case.
6

Redundant convictions
These petitions ask us to determine whether conviction for driving under the influence in violation of NRS
484.379 is necessarily redundant to conviction for traffic code infractions occurring during the same driving
episode. The parties focus their attention on this court's decisions in Albitre v. State, 103 Nev. 2S1,
__________

5
The approximate delays between entry of the district court orders and filing of the petitions are as follows:
five months in Docket Nos. 32938 and 32940; six months in Docket Nos. 32936, 32939, and 32941; and eleven
months in Docket No. 32937.

6
The real parties also argue that the petitions are moot because the one-year statute of limitations for
driving under the influence ran prior to the filing of the petitions or while the petitions were pending in this
court. We conclude that the statute of limitations ran prior to the filing of the petition only in the case docketed
in this court as Docket No. 32937. As set forth above, we have concluded that consideration of that petition is
precluded by the doctrine of laches and, therefore, we need not resolve the statute of limitations argument in
that matter. As to the remaining petitions, the statute of limitations did not run prior to the filing of the petitions.
Moreover, as discussed herein, we conclude that the original charging documents setting forth the driving
under the influence charges were erroneously dismissed and must be reinstated. Thus, the statute of limitations
is not implicated.
281, 738 P.2d 1307 (1987) and Donahue v. City of Sparks, 111 Nev. 1281, 903 P.2d 225 (1995).
7

Albitre was this court's first foray into the concept of redundant convictions. Albitre was an intoxicated driver
who caused the deaths of two people in a traffic accident. A jury convicted Albitre of two counts each of felony
driving under the influence in violation of NRS 484.3795, involuntary manslaughter and felony reckless driving.
Albitre, 103 Nev. at 282, 738 P.2d at 1308. This court reversed four of the convictions, concluding that Albitre
was entitled to relief from redundant convictions that do not comport with legislative intent. Id. at 283, 738
P.2d at 1309. We reasoned that:
The gravamen of all the charges is that Albitre proximately caused the death of two persons by operating
a vehicle in a reckless and unsafe manner due to her intoxication. The State has simply compounded the
convictions by eliminating the aspect of alcohol from the four counts under question. We are convinced
that the Legislature never intended to permit the State to proliferate charges as to one course of conduct
by adorning it with chameleonic attire. Although charging to the limit may be justified to cover
developing nuances of proof, the jury should have received an instruction limiting the number of
conviction alternatives. The failure to do so was error.
Id. at 284, 738 P.2d at 1309.
[Headnotes 10, 11]
The issue under Albitre is whether the gravamen of the charged offenses is the same such that it can be said
that the legislature did not intend multiple convictions. [R]edundancy does not, of necessity, arise when a
defendant is convicted of numerous charges arising from a single act. Skiba v. State, 114 Nev. 612, 616 n.4,
959 P.2d 959, 961 n.4 (1998). The question is whether the material or significant part of each charge is the same
even if the offenses are not the same. Thus, where a defendant is convicted of two offenses that, as charged,
punish the exact same illegal act, the convictions are redundant. For example, in Skiba, the gravamen of the
charges, battery with the use of a deadly weapon and battery causing substantial bodily harm,
__________

7
We acknowledge that the bulk of the petitions filed by the state address whether the charged offenses are the
same offense under the test set forth in Blockburger v. United States, 284 U.S 299 (1932). We need not reach
this issue because the lower courts relied on the redundant convictions analysis in Albitre, not the same offense
analysis in Blockburger. Nonetheless, we note that each of the offenses at issue in each of these cases requires
proof of an element that the other offenses do not. Accordingly, under Blockburger, the offenses are not the
same.
and battery causing substantial bodily harm, was that the defendant hit the victim with a broken beer bottle.
Accordingly, conviction for both charges was redundant. Skiba, 114 Nev. at 612, 959 P.2d at 959; see also
Dossey v. State, 114 Nev. 904, 964 P.2d 782 (1998) (gravamen of charges (driving under the influence, driving
while having 0.10 percent or more by weight of alcohol in the blood and having a blood alcohol content of 0.10
percent or more by weight of alcohol in the blood within two hours of driving) was that defendant was driving
while intoxicated); State v. Koseck, 113 Nev. 477, 936 P.2d 836 (1997) (gravamen of charges (lewdness and
sexual assault) was that defendant had unlawful sexual intercourse with victim).
The real parties in interest assert that our opinion in Donahue necessitates the conclusion that the gravamen
of the offenses at issue is the same. We disagree.
In Donahue, this court briefly addressed Albitre where the defendant had been charged with violating three
city ordinances: driving under the influence, careless driving and failure to decrease speed. 111 Nev. at 1282,
903 P.2d at 226. The issue of redundant convictions was not specifically before this court in Donahue. However,
to avoid ruling on a constitutional issue presented by Donahue, this court stated:
The City conceded at oral argument that under Albitre v. State, 103 Nev. 281, 738 P.2d 1307 (1987),
Donahue could not be convicted and sentenced for all three charges because two of the charges are
redundant. Thus, Donahue does not face a sentence in excess of six months' imprisonment. Accordingly,
we need not reach Donahue's aggregation argument.
Id. at 1283, 903 P.2d at 226-27. However, in a footnote, this court observed that situations may arise in the
future where the law announced in Albitre will not prevent consecutive sentences on multiple charges. Id. at
1283 n.2, 903 P.2d at 227 n.2.
We conclude that the real parties' reliance on Donahue is misplaced. Donahue was decided based solely on
the city's representations regarding the particular facts of the case.
8
It does not stand for the general proposition
that a conviction for driving under the influence in violation of NRS 4S4.379{1) is necessarily
redundant to a conviction for speeding or any other general traffic code infraction.
__________

8
In particular, we note that under the Sparks Municipal Code, it appears that the driving under the influence
and failure to decrease speed charges provided the substantive proof to establish the careless driving charge. See
Sparks Municipal Code 10.44.050. We recognize that where a charge of reckless or careless driving is premised
on the fact that the defendant was driving under the influence, convictions for both reckless or careless driving
and driving under the influence arguably would be redundant. See Johnson v. State, 111 Nev. 1210, 902 P.2d 48
(1995). This does not appear to be the situation in any of the cases presently before this court.
under the influence in violation of NRS 484.379(1) is necessarily redundant to a conviction for speeding or any
other general traffic code infraction. Because the instant cases are readily distinguishable both on the facts and
the nature of the charged offenses, we conclude that Donahue is not dispositive.
[Headnotes 12-20]
Applying the redundant convictions analysis, we conclude that the gravamen of the offenses charged against
each of the real parties in interest is not the same.
9
The gravamen of a DUI charge pursuant to NRS 484.379(1)
is that the defendant was driving and/or in actual physical control of a vehicle while under the influence of
intoxicating liquor. A conviction for DUI under this statute does not require proof that the driver did any act or
neglected any duty imposed by law while driving under the influence. Cf. NRS 484.3795 (driving under the
influence causing substantial bodily harm or death). In other words, the defendant's ability to drive safely while
intoxicated is not relevant to a charge under NRS 484.379(1). Cf. Cotter v. State, 103 Nev. 303, 738 P.2d 506
(1987) (addressing violation of NRS 484.3795). Therefore, it cannot be said that NRS 484.379(1) is intended to
punish the violation of a particular traffic rule. In contrast, the gravamen of a rules of the road charge under
NRS chapter 484 or a municipal ordinance is that the defendant was operating a vehicle in a particular manner
that is prohibited by the relevant statute. Thus, for example, the gravamen of a charge for violating NRS
484.305(1) is that the driver changed a direct course of travel without giving the proper signal. A rule of the
road charge is not intended to punish for driving while intoxicated and does not take into consideration whether
the driver was intoxicated. Accordingly, we conclude that the gravamen of the charged offenses is not the same,
and therefore, convictions for each of the offenses would not have been impermissibly redundant.
10

__________

9
We reject the real parties' suggestion that the gravamen of the charges is the act of driving. The act of
driving overlaps between each offense, as none could have been committed without the act of driving; however,
we conclude that this is not the gravamen of the charged offenses. The gravamen of an offense typically is the
material act being punisheddriving is not itself being punished pursuant to any of the charges.

10
The petitions filed by the state and the answer filed by the real parties in interest are filled with invective
regarding the tactics employed in justice's court by each side. We take this opportunity to clarify a few
misconceptions highlighted by these arguments.
First, the real parties repeatedly assert that the tactic employed in justice's courtrequesting to plead guilty to
the traffic code infraction and then moving to dismiss the driving under the influence chargewas justified by
overzealous and duplicitous over-charging by the state. We remind the real
CONCLUSION
Based on the foregoing, we grant the petitions for writs of mandamus in each of these matters except Docket
No. 32937. The petition filed in Docket No. 32937 is denied based on the doctrine of laches. The clerk of this
court shall issue a writ to each district court in the other matters requiring the court to vacate its order
dismissing the state's appeal and enter an order directing the justice's court to reinstate the dismissed charge.
__________
parties that even if convictions for multiple offenses would be impermissibly redundant, the state still may
charge all of the offenses in a single case. See Jenkins v. District Court, 109 Nev. 337, 341, 849 P.2d 1055,
1057 (1993); Albitre, 103 Nev. at 284, 738 P.2d at 1309.
Second, where a defendant is facing multiple charges, a trial court is not required, over the state's objection, to
accept a guilty plea on one of the charges. A criminal defendant does not have an absolute right under the
Constitution to have his guilty plea accepted by the court. North Carolina v. Alford, 400 U.S. 25, 38 n.11
(1970); see also Jefferson v. State, 108 Nev. 953, 954, 840 P.2d 1234, 1235 (1992) (appellant had no right to
enter a guilty plea to any particular charge). Nevada courts have discretion to refuse a guilty plea. NRS
174.035(1); Sturrock v. State, 95 Nev. 938, 940, 604 P.2d 341, 343 (1979). If the court concludes there is a plea
agreement between the parties, the court must conduct a hearing and consider seriously the proffered plea.
Sparks v. State, 104 Nev. 316, 322-23, 759 P.2d 180, 184 (1988) (setting forth factors to consider in deciding
whether to accept proffered plea). Here, the justices' courts could have refused the guilty pleas offered by the
real parties because: there were no plea agreements in any of the cases; the state expressly objected to the pleas
in all but one of the cases; and, where conviction for multiple offenses might be redundant, accepting such a
unilateral guilty plea undermines prosecutorial discretion in charging and the state's interest in obtaining a
conviction on the other charges, which may be the more serious charges. See Jefferson, 108 Nev. at 954, 840
P.2d at 1235 (no abuse of discretion to refuse guilty plea where there was no plea agreement and charge to
which defendant offered to plead guilty was lesser included offense of another charge). Moreover, even if the
justices' courts had elected to accept the guilty pleas, they were not obligated to enter an immediate sentence and
conviction. See Jenkins, 109 Nev. at 341, 849 P.2d at 1057; see also NRS 173.125.
____________
116 Nev. 140, 140 (2000) Knight v. State
SAMUEL KNIGHT, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 31810
February 3, 2000 993 P.2d 67
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of trespass and one count of
carrying a concealed weapon. Eighth Judicial District Court, Clark County; John S. McGroarty, Judge.
Defendant was convicted in the district court of one count of trespass and one count of carrying a concealed
weapon, and he appealed. The supreme court held that: (1) satisfaction of a fine or completion of a sentence
does not, in and of itself, render a timely appeal from a criminal conviction moot; overruling Bryan v. State, 78
Nev. 38, 368 P.2d 672 (1962); State v. Cohen, 45 Nev. 266, 201 P. 1027 (1921); State v. Pray, 30 Nev. 206, 94
P. 218 (1908); (2) prosecutor's statements did not constitute improper comment on defendant's failure to testify;
(3) instruction which advised jury that [e]very person found to be carrying a dirk, dagger or dangerous knife
concealed on his person is guilty of the crime of carrying a concealed weapon was plainly erroneous; (4) steak
knife carried by defendant in his back pocket was not, as matter of law, dirk or dagger for purposes of
statute prohibiting carrying of concealed weapons; (5) determination as to whether steak knife was other
dangerous or deadly weapon for purposes of statute was question of fact for jury; and (6) erroneous jury
instruction was harmless.
Affirmed.
Christopher R. Oram, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, and James
Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
The satisfaction of a fine or completion of a sentence does not, in and of itself, render a timely appeal from a criminal conviction
moot; however, completion of a defendant's sentence may render a challenge to the sentence itself moot; overruling Bryan v. State, 78
Nev. 38, 368 P.2d 672 (1962); State v. Cohen, 45 Nev. 266, 201 P. 1027 (1921); State v. Pray, 30 Nev. 206, 94 P. 218 (1908).
2. Criminal Law.
Prosecutor's objection to factual assertions made by defendant acting as his own counsel, on ground that defendant was
testifying, and his statements during closing argument that jury should consider testimony of witnesses because each witness was
placed under oath and subjected to cross-examination and possible impeachment, and that defendant's comments during
opening statement and closing argument were not evidence, did not constitute improper comment on
defendant's failure to testify.
dant's comments during opening statement and closing argument were not evidence, did not constitute improper comment on
defendant's failure to testify.
3. Criminal Law.
When a reference is indirect, the test for determining whether prosecutorial comment constitutes a constitutionally impermissible
reference to a defendant's failure to testify is whether the language used was manifestly intended to be or was of such a character that
the jury would naturally and necessarily take it to be comment on the defendant's failure to testify.
4. Criminal Law.
A prosecutor's comments should be viewed in context, and a criminal conviction is not to be lightly overturned on the basis of a
prosecutor's comments standing alone.
5. Criminal Law; Weapons.
Instruction which advised jury that [e]very person found to be carrying a dirk, dagger or dangerous knife concealed on his person
is guilty of the crime of carrying a concealed weapon was plainly erroneous. Term dangerous knife, as used in prior version of
governing statute, is unconstitutionally vague. NRS 202.350(1)(b)(2).
6. Weapons.
As used in statute prohibiting carrying of concealed weapons, a dagger is a short weapon used for thrusting and stabbing and
that stabbing is using a pointed weapon to wound or kill. NRS 202.350(1)(b)(2).
7. Weapons.
As used in statute prohibiting carrying of concealed weapons, a dirk is, in most cases, simply a type of dagger. NRS
202.350(1)(b)(2).
8. Weapons.
Relevant factors to consider when determining whether a knife is a dirk or dagger of type prohibited by carrying concealed
weapon statute include whether the knife has handguards and a blade that locks in place. NRS 202.350(1)(b)(2).
9. Statutes.
Penal statutes should be strictly construed and any reasonable doubts resolved in favor of the accused.
10. Weapons.
Common household steak knife carried by defendant in his back pocket was not, as matter of law, dirk or dagger for purposes
of statute prohibiting carrying of concealed weapons, where steak knife was not primarily designed or fitted for use as weapon, and did
not have handguards to prevent hand from slipping onto blade if it were used as stabbing implement. NRS 202.350(1)(b)(2).
11. Weapons.
Determination as to whether common household steak knife carried by defendant in his back pocket was other dangerous or
deadly weapon for purposes of statute prohibiting carrying of concealed weapons was question of fact for jury. NRS 202.350(1)(b)(2).
12. Criminal Law.
Error in instructing jury in prosecution for carrying concealed weapon that [e]very person found to be carrying a dirk, dagger or
dangerous knife concealed on his person is guilty of the crime of carrying a concealed weapon was harmless, where evidence showed
that defendant was apprehended while carrying steak knife in his back pocket shortly after using knife to stab
two people.
was apprehended while carrying steak knife in his back pocket shortly after using knife to stab two people. NRS 202.350(1)(b)(2).
OPINION
Per Curiam:
FACTS
The facts underlying the instant prosecution are unusual. Prior to the charged incident, appellant Samuel
Knight had confronted Matthew Minton, a resident of an apartment in Las Vegas, on at least two prior
occasions. Appellant complained to Minton that someone in the apartment had taken his car.
On August 22, 1997, at approximately 8:30 a.m., appellant knocked on the door of the apartment where
Minton was staying. Jenise Landolfa, another resident of the apartment, went to the door. Landolfa saw
appellant through the peephole and told him that if he did not leave, she would call the police. Appellant
yelled at Landolfa and proceeded to kick in the door. Appellant was carrying a steak knife and a fork.
1
Landolfa later testified that appellant cut her hand with the knife.
Appellant entered the apartment. A guest in the apartment, Hiram Figgures, fled through a window.
Appellant pursued Figgures to a convenience store.
Police apprehended appellant at the store. At that time, police found the fork and knife in appellant's
back pockets. Appellant's shirt fully concealed both the knife and the fork from view. An officer observed
that the knife appeared to have some food on it and that it looked like it had been used for cutting steak or
something like that.
The State charged appellant, by criminal complaint, with one count each of invasion of the home, battery
with the use of a deadly weapon, and carrying a concealed weapon. The State specifically alleged that
appellant carried concealed upon his person, a deadly weapon, to-wit: a knife. The charge of battery with
the use of a deadly weapon was dismissed following the preliminary hearing, but appellant was bound over
on the other charges. Prior to trial, appellant obtained leave from the court to represent himself. Standby
counsel from the public defender's office assisted appellant in subsequent proceedings.
Following the trial, the jury found appellant guilty of one count of trespass, a misdemeanor and
lesser offense to invasion of the home.
__________

1
The fork was described by one witness as a barbecue fork, and in a police report as a large two-pronged
fork.
of trespass, a misdemeanor and lesser offense to invasion of the home. The jury also found appellant guilty of
carrying a concealed weapon, a gross misdemeanor. On February 3, 1998, the district court entered the judgment
of conviction. The court sentenced appellant to serve six months in the Clark County Detention Center for
trespass and one year in the detention center for carrying a concealed weapon. This appeal followed.
DISCUSSION
State's motion to dismiss
On December 16, 1998, the State filed a motion to dismiss this appeal on the ground that expiration of
appellant's sentence had rendered the matter moot. In response, appellant conceded that he had expired his
sentence but opposed dismissal of this appeal. This court deferred its decision on the State's motion until the
completion of briefing. We now rule that the instant appeal is not moot. Accordingly, we deny the State's motion
to dismiss.
This court has concluded that an appeal in a misdemeanor or gross misdemeanor case was rendered moot
by satisfaction of a fine or completion of a defendant's sentence. Bryan v. State, 78 Nev. 38, 368 P.2d 672
(1962); State v. Cohen, 45 Nev. 266, 201 P. 1027 (1921); see also State v. Pray, 30 Nev. 206, 94 P. 218 (1908).
This court concluded that no effective relief would accrue from reversal of the defendant's conviction if the fine
had been paid or the sentence served. See Bryan, 78 Nev. at 39-40, 368 P.2d at 672; Cohen, 45 Nev. at 272-73;
201 P. at 1029; Pray, 30 Nev. at 220, 94 P. at 220.
[Headnote 1]
More recently, however, this court has recognized that criminal convictions carry with them certain collateral
consequences. See Hughes v. State, 112 Nev. 84, 910 P.2d 254 (1996); see also Angle v. State, 113 Nev. 757,
761 n.1, 942 P.2d 177, 180 n.1 (1997); Arterburn v. State, 111 Nev. 1121, 1124 n.1, 901 P.2d 668, 670 n.1
(1995). For example, even a gross misdemeanor conviction may impact penalty considerations in a subsequent
criminal action. Hughes, 112 Nev. at 87, 910 P.2d at 255. Our recent holdings are consistent with the decisions
of the United States Supreme Court which have recognized that it is an obvious fact of life that most criminal
convictions do in fact entail adverse collateral legal consequences. Sibron v. New York, 392 U.S. 40, 55 (1968)
(quoted in Spencer v. Kemna, 523 U.S. 1, 12 (1998)).
Consequently, we expressly overrule Bryan, Cohen, and Pray to the extent that they hold that satisfaction of
a fine or completion of a sentence renders a timely appeal from a criminal conviction moot.
viction moot. We recognize, however, that completion of a defendant's sentence may render a challenge to the
sentence itself moot. See generally Johnson v. Director, Dep't Prisons, 105 Nev. 314, 316, 774 P.2d 1047, 1049
(1989) (stating that expiration of a defendant's sentence rendered any question concerning computation of the
sentence moot). We now turn to the merits of this appeal.
Prosecutorial misconduct
[Headnote 2]
First, appellant claims that the prosecutor improperly commented on appellant's failure to testify. As
previously noted, appellant represented himself at trial. In closing argument, the prosecutor lodged several
objections to appellant's attempts to make factual assertions. On one occasion, the prosecutor stated,
Objection once again, he's testifying. If he's going to testify, I would like him to take the stand and be put
under oath, and I have some questions I'd like to ask him. On this particular occasion, the court overruled the
objection on the ground that appellant was explaining his theory of the case. Appellant complains that the
prosecutor's objection was improper.
Appellant further complains that the prosecutor made additional improper comments during summation.
The prosecutor told the jury that they should consider the testimony of the witnesses because each witness was
placed under oath and subjected to cross-examination and possible impeachment. The prosecutor explained
that this was to ensure reliable testimony. The prosecutor cautioned the jury that what appellant said in his
opening statement and in closing argument was not evidence because appellant was acting in his capacity as
counsel.
[Headnotes 3, 4]
Considered in context, the prosecutor's comments in the instant case do not warrant reversal. The
prosecutor did not directly comment on appellant's failure to testify.
When a reference is indirect, the test for determining whether prosecutorial comment constitutes a
constitutionally impermissible reference to a defendant's failure to testify is whether the language used
was manifestly intended to be or was of such a character that the jury would naturally and necessarily
take it to be comment on the defendant's failure to testify.
Harkness v. State, 107 Nev. 800, 803, 820 P.2d 759, 761 (1991) (quoting United States v. Lyon, 397 F.2d 505,
509 (7th Cir. 1968)). A prosecutor's comments should be viewed in context, and a criminal conviction is not to
be lightly overturned on the basis of a prosecutor's comments standing alone . . . ."
basis of a prosecutor's comments standing alone . . . . United States v. Young, 470 U.S. 1, 11 (1985). Here, the
prosecutor's comments are best understood as an attempt to dissuade the jury from relying on appellant's factual
assertions, and to instead focus the jury's deliberation on the evidence adduced at the trial. Under these
circumstances, the jury could not naturally and necessarily consider the prosecutor's comments as being
directed at appellant's failure to testify.
Carrying a concealed weapon
Second, appellant claims that there was insufficient evidence to convict him of carrying a concealed
weapon, pursuant to NRS 202.350(1)(b). The statute prohibits an individual from carrying, concealed upon his
person any: (1) Explosive substance, other than ammunition or any components thereof; (2) Dirk, dagger or
machete; (3) Pistol, revolver or other firearm, or other dangerous or deadly weapon; or (4) Knife which is
made an integral part of a belt buckle.
2
Appellant asserts that a steak knife is not a weapon pursuant to the
statute.
3

In respondent's appendix, the State includes color photographs of the knife at issue. It is a common steak
knife with a serrated blade. The knife is photographed next to a ruler. It appears that the handle of the knife is
approximately four inches in length with a blade of roughly equivalent length.
[Headnote 5]
Preliminarily, we note that the jury was not properly instructed. Jury Instruction No. 6 reads: Every person
found to be carrying a dirk, dagger or dangerous knife concealed on his person is guilty of the crime of
Carrying a Concealed Weapon. (Emphasis added.) Prior to 1995, NRS 202.350(1)(b)(2) prohibited
concealment of a [d]irk, dagger or dangerous knife, but this court held that the term dangerous knife was
unconstitutionally vague. Bradvica v. State, 104 Nev. 475, 477, 760 P.2d 139, 141 (1988). In 1995, the
legislature replaced the term dangerous knife with machete. 1995 Nev. Stat., ch. 713, 13, at 2726.
Appellant did not object to the jury instruction in the district court or on appeal. Nonetheless, the instruction
constitutes plain error readily apparent from our review of the record. See Patterson v. State, 111 Nev. 1525,
1530, 907 P.2d 984, 987 (1995). We further note, however, that reversal is not warranted if this error is
harmless.
__________

2
Although NRS 202.350 has been amended since commission of the instant offense, the quoted provisions of
NRS 202.350(1)(b) have not been changed.

3
As previously noted, appellant was also found in possession of a fork. Appellant was, however, only
charged with carrying a concealed knife.
this error is harmless. See Donald v. State, 112 Nev. 348, 349-50, 913 P.2d 655, 656 (1996) (holding that a jury
instruction that expanded the definition of an offense beyond the statutory definition was harmless beyond a
reasonable doubt); see also Neder v. United States, 527 U.S. 1 (1999); Johnson v. United States, 520 U.S. 461,
469 (1997). Accordingly, we consider both the sufficiency of the evidence and the issue of whether the
erroneous jury instruction was harmless, in view of the relevant statutory provisions.
We conclude that the weapons specifically enumerated in NRS 202.350(1)(b) are all weapons for purposes
of the statute as a matter of law. The bladed weapons enumerated are a dirk, dagger, machete, and a knife made
an integral part of a belt buckle. Only the first two could arguably apply here.
[Headnotes 6, 7]
Our legislature has not provided its own definition of the terms dirk or dagger. This court has stated,
however, that a dagger is a short weapon used for thrusting and stabbing and that stabbing is using a pointed
weapon to wound or kill. Huebner v. State, 103 Nev. 29, 30 n.1, 731 P.2d 1330, 1331-32 n.1 (1987) (citing The
Oxford Dictionary of English Etymology (1983)). Webster's Third New International Dictionary (1976) defines
a dirk as a long straight-bladed dagger. Alternately, a dirk is described as a short sword formerly worn by
British junior naval officers. Id. Thus, in most cases a dirk appears to be simply a type of dagger.
[Headnote 8]
Relevant factors to consider when determining whether a knife is a dirk or dagger include whether the
knife has handguards and a blade that locks in place. Bradvica v. State, 104 Nev. 475, 477, 760 P.2d 139, 141
(1988). Thus, this court held that a small pocket knife with a 2 5/16-inch spring-loaded blade with less than 2
inches along the sharpened edge was not a dirk or dagger for purposes of NRS 202.350(1)(b)(2). Id. at 476-77,
760 P.2d at 140-41.
[Headnotes 9, 10]
A steak knife is a pointed implement that may be employed as a weapon for thrusting and stabbing.
Nevertheless, a steak knife is not primarily designed or fitted for use as a weapon. A steak knife does not have
handguards to prevent the hand from slipping onto the blade if it is used as a stabbing implement. Further, we
doubt that the legislature sought to bar the concealment of common household items when it enacted the
statutory provisions prohibiting concealment of a dirk or dagger. Penal statutes should be strictly construed and
any reasonable doubts resolved in favor of the accused.
resolved in favor of the accused. See Sheriff v. Hanks, 91 Nev. 57, 60, 530 P.2d 1191, 1193 (1975). For these
reasons, we conclude that the steak knife at issue here is not a dirk or dagger as a matter of law.
This does not end our inquiry. NRS 202.350(1)(b)(3) also prohibits carrying a concealed [p]istol, revolver
or other firearm, or other dangerous or deadly weapon. (Emphasis added.) Neither appellant nor the State
makes any argument concerning this provision, nor does it appear that the jury was instructed to consider
whether the steak knife was a dangerous or deadly weapon. This court has not spoken on the issue of how this
language should be interpreted.
[Headnote 11]
Having considered the issue, we conclude that the determination of whether a common steak knife is a
dangerous or deadly weapon is a question of fact for the jury. Our approach is consistent with the approach
employed by the Missouri Supreme Court in State v. Baldwin, 571 S.W.2d 236 (Mo. 1978). The court
considered a statute that prohibited a person from carrying certain concealed weapons and other similar
deadly weapons.' Id. at 241. The court explained,
It is obvious that there are many useful and practical items which are carried by persons for peaceful
purposes. They are not normally thought of as dangerous and deadly weapons. Pocket knives, hammers,
screwdrivers, wrenches, cutting tools and letter openers are examples of such articles. Other items such as
butcher knives, steak knives, and ice picks, though not usually carried concealed on the person, are useful
utensils utilized for peaceful purposes. Such everyday instruments become dangerous or deadly only
when they are used or carried for use as a weapon. The determination of whether in a particular case such
instrument is dangerous and deadly would depend on a variety of factorsthe nature of the instrument
itself, the circumstances under which it is carried, including time, place, and situation in which defendant
is found in possession, the manner in which it is carried, the particular person carrying it, and perhaps
other factors such as possible peaceful uses therefor which the possessor might have.
Id.
[Headnote 12]
Consistent with this approach, we conclude that the error in the jury instruction was harmless, given the
particular facts of this case. See Donald v. State, 112 Nev. 348, 350, 913 P.2d 655, 656 {1996).
(1996). This is not a case involving legitimate concealment of a knife for peaceful purposes. The attendant
circumstances, including the time, place, and situation in which appellant was found in possession of the knife,
unequivocally demonstrate that appellant was carrying the knife as a weapon.
Critical to our determination are the events that occurred shortly before appellant's apprehension by police.
Given that the jury found appellant guilty of trespass, it is apparent that the jury believed witness testimony that
appellant improperly entered a Las Vegas apartment without permission. Further witness testimony established
that at that time appellant behaved in an aggressive and threatening manner, while carrying the steak knife at
issue.
4

CONCLUSION
We affirm appellant's conviction.
____________
116 Nev. 148, 148 (2000) Doyle v. State
ANTHONY LAVON DOYLE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 33216
February 3, 2000 995 P.2d 465
Appeal from an order of the district court denying a postconviction petition for a writ of habeas corpus in a
death penalty case. Eighth Judicial District Court, Clark County; Michael L. Douglas, Judge.
Following final appellate affirmance of his convictions for first-degree murder, conspiracy to commit
murder, and first-degree kidnapping, and of his sentence of death, 112 Nev. 879, 921 P.2d 901 (1996), petitioner
sought post-conviction relief. The district court denied petition, and petitioner appealed. The supreme court held
that: (1) trial counsel's failure to anticipate change in law governing pretextual stops and file suppression motion
based thereon was not ineffective assistance of counsel, (2) affidavit in support of search warrant demonstrated
substantial basis for concluding that probable cause existed, (3) petitioner was not prejudiced by admission of
allegedly irrelevant evidence, (4) color autopsy photographs displayed by projection were admissible as to both
content and format,
__________

4
We reach only the issue of how NRS 202.350(1)(b) should be interpreted. We express no opinion
concerning what constitutes a deadly weapon pursuant to the current provisions of NRS 193.165, the deadly
weapon enhancement statute.
116 Nev. 148, 149 (2000) Doyle v. State
both content and format, and (5) trial counsel's actions with respect to sexual assault instructions did not
prejudice petitioner.
Affirmed.
Scott L. Bindrup, Las Vegas, for Appellant.
1. Criminal Law.
To prevail on claim of ineffective counsel, defendant must show: (1) that counsel's performance was deficient, that is, it fell below
objective standard of reasonableness; and (2) that deficient assistance prejudiced defense, that is, but for counsel's errors, result of trial
would probably have been different. U.S. Const. amend. 6.
2. Criminal Law.
Court may consider the two test elements for ineffective assistance of counsel in any order and need not consider both if defendant
makes insufficient showing on either one. U.S. Const. amend. 6.
3. Criminal Law.
When ineffective assistance of counsel claim is based upon counsel's failure to file motion to suppress confession or motion to
suppress evidence allegedly obtained in violation of Fourth Amendment, prejudice prong must be established by showing that claim
was meritorious and that there was reasonable likelihood that exclusion of the evidence would have changed result of trial. U.S. Const.
amends. 4, 6.
4. Criminal Law.
Failure of counsel to anticipate a change in the law does not constitute ineffective assistance, even where theory upon which
court's later decision is based is available, although court had not yet decided issue. U.S. Const. amend. 6.
5. Criminal Law.
Defense counsel's failure to anticipate change in law governing pretextual stops and file suppression motion based thereon was not
ineffective assistance of counsel in capital murder case, although theory upon which subsequent change in law was based was
available, but undecided. U.S. Const. amend. 6.
6. Courts.
Rule governing determination of whether police stop was pretextual, announced on same date decision was rendered in
post-conviction petitioner's direct appeal from his capital murder conviction, governed post-conviction review of ineffective assistance
of counsel issues relating to defense counsel's failure to file suppression motion, where petitioner sought rehearing in his direct appeal,
rendering decision nonfinal and newly articulated rule applicable thereto. U.S. Const. amends. 4, 6.
7. Criminal Law.
Assuming applicability at time of post-conviction petitioner's capital murder trial of pretext analysis whereby arrest was pretextual
unless reasonable officer would have made arrest absent invalid purpose, defense counsel's failure to challenge admission of
petitioner's statement to police on pretext grounds did not amount to ineffective assistance.
116 Nev. 148, 150 (2000) Doyle v. State
counsel's failure to challenge admission of petitioner's statement to police on pretext grounds did not amount to ineffective assistance.
Fact that petitioner's parole officer did not arrest petitioner until after giving him numerous warnings for parole violations over course
of four months did not establish that petitioner would have been permitted to remain free indefinitely absent police officers' intent to
question him concerning murder. U.S. Const. amend. 6.
Whether probable cause is present to support search warrant is determined by totality of circumstances. U.S. Const. amend. 4.
Deficiency in either informant's veracity and reliability or his basis of knowledge, as relevant to probable cause to support issuance
of search warrant, may be compensated for, in determining overall reliability of tip, by strong showing as to the other, or by some other
indicia of reliability. U.S. Const. amend. 4.
10. Criminal Law.
Issuing judge's determination of probable cause to support search warrant should be given great deference by reviewing court.
Duty of reviewing court is simply to determine whether there is substantial basis for concluding that probable cause existed.
Affidavit in support of search warrant for capital murder defendant's residence demonstrated substantial basis for concluding that
probable cause existed. Any deficiency in informant's reliability was adequately compensated through corroboration of his information,
affidavit demonstrated adequate nexus between defendant's residence and items to be seized therefrom, and affidavit sufficiently
demonstrated probable cause even considering information alleged to have been omitted and purging information alleged to have been
misleading. U.S. Const. amend. 4.
Any deficiency in veracity of informant whose tip to police formed basis for search warrant for capital murder defendant's
residence arising by reason of fact that informant was incarcerated at time of his tip was adequately compensated, where information
provided by him was corroborated by details from crime scene not released to public, further investigation by police, and statements
from two other witnesses. U.S. Const. amend. 4.
Affidavit in support of search warrant for capital murder defendant's residence demonstrated adequate nexus between residence
and items to be seized therefrom, as required to support finding of probable cause to support issuance of warrant. Facts set forth in
affidavit showed probable cause to believe that items used in crime and sought to be seized would be found at defendant's residence.
Probable cause to support issuance of search warrant requires showing of trustworthy facts and circumstances which would cause
person of reasonable caution to believe that it is more likely than not that specific items to be searched for are seizable and will be
found in place to be searched. U.S. Const. amend. 4.
15. Criminal Law.
Alleged omissions from and misleading statements in affidavit supporting search warrant for capital murder defendant's residence
did not require suppression of fruits of warrant,
116 Nev. 148, 151 (2000) Doyle v. State
require suppression of fruits of warrant, where affidavit sufficiently demonstrated probable cause for warrant to issue even considering
omitted information and purging information alleged to have been misleading. U.S. Const. amend. 4.
16. Criminal Law.
Defendant is not entitled to suppression of fruits of search warrant, even based on intentional falsehoods or omissions, unless
probable cause is lacking once false information is purged and any omitted information is considered. U.S. Const. amend. 4.
17. Criminal Law.
Assuming that State failed to demonstrate relevance of stained denim pants seized from capital murder defendant's bedroom closet,
defendant was not prejudiced by admission thereof at trial, and counsel therefore was not ineffective for failing to object to their
admission, where other evidence adduced in support of defendant's guilt was strong, pants were introduced in perfunctory manner
without comment or further reference, officer through whose testimony pants were introduced testified only that pants were seized out
of an abundance of caution, and no testimony or argument suggested that stain was blood. U.S. Const. amend. 6.
18. Criminal Law.
Color autopsy photographs displayed to jury in capital murder prosecution were not duplicative and were relevant to cause of
death and manner of injury. Most photographs depicted patterns on victim's body consistent with footwear impressions and were
additionally relevant to show relationship between victim's injuries and soles of shoes found in defendant's possession, and defense
counsel relied on some of the photographs to support defense of mere presence.
19. Criminal Law.
Counsel's strategy decisions are not subject to challenge absent extraordinary circumstances.
20. Criminal Law.
Even gruesome photographs are admissible if they aid in ascertaining the truth, such as when used to show cause of death, severity
of wounds and manner of injury.
21. Criminal Law.
Color autopsy photographs displayed to jury in capital murder prosecution were admissible to show cause of death, despite fact
that defendant did not dispute cause of death, as defendant's not guilty plea put all elements of offense at issue.
22. Criminal Law.
By pleading not guilty, a defendant puts all elements of the offense at issue.
23. Witnesses.
Projection display of color autopsy photographs in capital murder prosecution did not render photographs inadmissible, where
photographs were briefly projected onto screen to aid medical examiner in explaining his findings related to cause of death and manner
of injury to the jury.
24. Witnesses.
Images properly admissible as photographs may be projected to illustrate testimony of witnesses.
25. Witnesses.
Where autopsy photographs are admissible, it is permissible to project same images onto a screen as means of assisting medical
examiner in explaining his or her findings relevant to issues before jury.
116 Nev. 148, 152 (2000) Doyle v. State
26. Criminal Law.
Defense counsel's failure to request jury instruction stating that sexual penetration of a dead body does not constitute sexual assault
and to object to instruction given on sexual assault did not prejudice defendant charged with both capital murder and sexual assault,
and therefore did not amount to ineffective assistance, where sexual assault instruction given did not constitute plain error, and where
defendant's sexual assault conviction was reversed on direct appeal. U.S. Const. amend. 6.
27. Criminal Law.
Defense counsel's failure to request jury instruction stating that sexual penetration of a dead body does not constitute sexual assault
and to object to instruction given on sexual assault did not influence jury's verdict of death, and therefore did not amount to ineffective
assistance of counsel, where jury did not find sexual assault aggravator, but rather rested its verdict of death on other aggravators,
namely, that murder was committed by person under sentence of imprisonment, was committed while the person was engaged in
commission of or attempt to commit kidnapping, and was committed to avoid or prevent lawful arrest or to effect escape from custody.
OPINION
Per Curiam:
The State tried and convicted appellant Anthony Lavon Doyle of first-degree murder, conspiracy to
commit murder, first-degree kidnapping and sexual assault. The jury returned a sentence of death. On direct
appeal, we reversed Doyle's conviction for sexual assault, but affirmed the remaining convictions and
sentence of death. Doyle thereafter petitioned the district court for post-conviction relief and alleged that his
trial counsel were ineffective on numerous grounds. After conducting an evidentiary hearing, the district
court denied the petition. This appeal followed.
On appeal, Doyle alleges that the district court erred in determining that trial counsel were not ineffective
for (1) failing to seek suppression of Doyle's statement to police; (2) failing to seek suppression of evidence
recovered during a search of Doyle's residence; (3) failing to object to the admission into evidence of a pair
of stained denim pants; (4) failing to object to the admission and projection display of color autopsy
photographs; (5) failing to request a jury instruction or object to the instruction given on sexual assault; and
(6) failing to adequately research issues in preparation for trial. Doyle also argues that the district court erred
in determining that reversal is not warranted on the basis of cumulative error caused by ineffective trial
counsel. We reject Doyle's arguments and affirm.
116 Nev. 148, 153 (2000) Doyle v. State
FACTS
A full explanation of the facts is contained in our opinion resulting from Doyle's direct appeal. See Doyle v.
State, 112 Nev. 879, 921 P.2d 901 (1996). As explained therein, on January 16, 1994, the nude body of
twenty-year-old Ebony Mason was discovered in a desert area of Clark County, Nevada. Mason had been beaten
and strangled to death, and a four-inch twig protruded from her rectum. Doyle in association with two
co-defendants was charged with one count each of first-degree murder, conspiracy to commit murder,
first-degree kidnapping and sexual assault. Doyle pleaded not guilty to all charges. The State filed notice of
intent to seek the death penalty. The matter proceeded to a jury trial commencing January 3, 1995. Doyle
presented a defense of mere presence. The jury returned a guilty verdict as to each count. Following a penalty
hearing, the jury found three aggravating circumstances and no mitigating circumstances sufficient to outweigh
the aggravating circumstances and imposed a sentence of death. The district court additionally sentenced Doyle
to consecutive life terms of imprisonment for first-degree kidnapping and sexual assault, and a concurrent
six-year term of imprisonment for conspiracy to commit murder.
On direct appeal, this court concluded that insufficient evidence was adduced to show that sexual penetration
occurred prior to Mason's death, and we reversed Doyle's conviction for sexual assault. Doyle, 112 Nev. at
895-900, 903, 921 P.2d at 912-15, 916. However, we rejected Doyle's remaining contentions and affirmed his
remaining convictions and sentence of death. Id. at 903, 921 P.2d at 916.
On June 26, 1997, Doyle filed in the district court a proper person post-conviction petition for a writ of
habeas corpus claiming ineffective assistance of counsel. Appointed counsel filed documents in support of the
petition. Counsel argued before the district court that Doyle's trial counsel were ineffective for (1) failing to seek
suppression of Doyle's statement to police; (2) failing to seek suppression of evidence recovered during a search
of Doyle's residence; (3) failing to object to the admission into evidence of the pair of stained denim pants; (4)
failing to object to the admission and projection display of color autopsy photographs depicting injuries suffered
by Mason; and (5) failing to request a jury instruction or object to the instruction given on sexual assault.
Counsel also argued that reversal was warranted on the basis of cumulative error caused by ineffective trial
counsel.
On January 26, 1998, and July 8, 1998, the district court held an evidentiary hearing and heard argument on
Doyle's petition. The district court then denied the petition. Doyle filed a timely appeal.
116 Nev. 148, 154 (2000) Doyle v. State
DISCUSSION
[Headnotes 1, 2]
Pursuant to Strickland v. Washington, 466 U.S. 668 (1984), to prevail on a claim of ineffective counsel, a
defendant must show (1) that counsel's performance was deficient, i.e., it fell below an objective standard of
reasonableness, and (2) that the deficient assistance prejudiced the defense, i.e., but for counsel's errors, the
result of trial would probably have been different. Dawson v. State, 108 Nev. 112, 115, 825 P.2d 593, 595
(1992) (citing Strickland, 466 U.S. at 687-88, 694). A court may consider the two test elements in any order and
need not consider both if the defendant makes an insufficient showing on either one. Kirksey v. State, 112 Nev.
980, 987, 923 P.2d 1102, 1107 (1996) (citing Strickland, 466 U.S. at 697).
I. Failure to challenge the admissibility of Doyle's statement to police as tainted by a pretextual arrest
Doyle contends that the district court applied the wrong standard in determining that Doyle's trial counsel
were not ineffective for failing to seek suppression of Doyle's post-arrest, post-Miranda statement to police.
Doyle argues that the district court should have applied the standard first adopted in Alejandre v. State, 111 Nev.
1235, 1239-40, 903 P.2d 794, 796 (1995), reaffirmed in Taylor v. State, 111 Nev. 1253, 1255-57, 903 P.2d 805,
807-08 (1995), and subsequently abandoned in Gama v. State, 112 Nev. 833, 836-37, 920 P.2d 1010, 1012-13
(1996) (overruling Alejandre and Taylor), to determine whether Doyle's statement to police was tainted by an
impermissibly pretextual arrest made by Doyle's parole officer. Doyle contends that under Alejandre's test, a
motion to suppress his statement would have been meritorious, and thus, trial counsel were ineffective for failing
to make such a motion. We conclude that this contention lacks merit.
[Headnote 3]
When an ineffective assistance of counsel claim is based upon counsel's failure to file a motion to suppress a
confession or a motion to suppress evidence allegedly obtained in violation of the Fourth Amendment, the
prejudice prong must be established by a showing that the claim was meritorious and that there was a reasonable
likelihood that the exclusion of the evidence would have changed the result of a trial. Kirksey, 112 Nev. at 990,
923 P.2d at 1109.
In Alejandre, we recognized that two competing tests had emerged to determine whether a stop by police
which is alleged to be pretextual violates the Fourth Amendment:
116 Nev. 148, 155 (2000) Doyle v. State
to be pretextual violates the Fourth Amendment: (1) the would test, under which a stop is impermissibly
pretextual unless a reasonable officer would have made the stop absent the invalid purpose, and (2) the could
test, under which a stop is valid so long as the officer was legally authorized to make the stop, even if the officer
would have ignored the underlying valid justification for the stop but for his other suspicions. We then adopted
the would test, concluding that it was supported by persuasive reasoning. Alejandre, 111 Nev. at 1239-40, 903
P.2d at 796; see also Taylor, 111 Nev. at 1257, 903 P.2d at 807-08.
In Gama, this court recognized that the would test as applicable to claims of pretext was discredited by the
Supreme Court's ruling in Whren v. United States, 517 U.S. 806 (1996). Gama, 112 Nev. at 836, 920 P.2d at
1012-13. In Whren, the Court held that the temporary detention of a motorist upon probable cause to believe that
he has violated the traffic laws does not violate the Fourth Amendment's prohibition against unreasonable
searches and seizures, even if a reasonable officer would not have stopped the motorist absent some additional
law enforcement objective. Whren, 517 U.S. at 808-19. In so doing, the Court recognized that subjective
intentions play no role in ordinary probable-cause Fourth Amendment analysis.
1
Id. at 813. Based on Whren's
holding, this court in Gama stated that it was constrained to overrule Alejandre and Taylor to the extent that
each required application of the would test to pretext claims under the Fourth Amendment and the Nevada
Constitution, article 1, section 18 (protecting against unreasonable seizures and searches). Gama, 112 Nev. at
836, 920 P.2d at 1013. We then determined that the could test was the proper test to apply where a claim of
pretext is made. Id. at 836-37, 920 P.2d at 1013.
Doyle argues that Alejandre was the controlling law at the time of his arrest and that Gama applies
prospectively only. Doyle acknowledges that Alejandre was not decided until October 4, 1995, which was after
Doyle's January 1995 trial. Nevertheless, he argues that the Alejandre would test did not materialize out of
thin air, as this court had previously recognized a would test in Hatley v. State, 100 Nev. 214, 678 P.2d 1160
(1984), and this test was already recognized in other jurisdictions as indicated in Alejandre.
__________

1
Doyle does not argue that his arrest is invalid under Gama or that the could test announced in Whren and
adopted in Gama does not apply to arrests made by parole officers pursuant to NRS 176A.500. Moreover, we
note that although Whren involved a traffic detention, its conclusion that subjective intentions play no role in
ordinary probable-cause Fourth Amendment analysis is equally applicable to arrests. See United States v.
Sayetsitty, 107 F.3d 1405, 1414 (9th Cir. 1997); United States v. Hathcock, 103 F.3d 715, 719 (8th Cir. 1997).
116 Nev. 148, 156 (2000) Doyle v. State
as indicated in Alejandre. Therefore, he contends that trial counsel should have recognized the existence of
legally-cognizable grounds to support a motion to suppress. Further, Doyle argues that if the issue had been
preserved, appellate counsel could have raised it after Alejandre was decided.
[Headnotes 4, 5]
We conclude that Doyle is mistaken in his contention that Alejandre merely restated the law as it was
declared in Hatley. In Hatley, the appellant claimed in a post-conviction petition that he had been illegally
arrested at his home without a warrant. 100 Nev. at 215, 678 P.2d at 1161. The State opposed the petition by
attaching a sworn affidavit stating that the appellant was arrested on a bench warrant for failure to appear for a
traffic violation. The affidavit contradicted trial testimony. The district court denied the petition without an
evidentiary hearing. This court concluded that an evidentiary hearing was necessary to resolve the conflict. Id. at
216-17, 678 P.2d at 1161-62. We then stated:
Additionally, we note that an evidentiary hearing was necessary to determine the truth of appellant's
alternate contention that even if the arresting officers were aware of the existence of the misdemeanor
bench warrant at the time of appellant's arrest, they were nevertheless using it as an impermissible
pretext to arrest appellant on the burglary charge. This contention, if true, would at least arguably
entitle appellant to relief.
Id. at 217, 668 P.2d at 1162 (emphasis added). Contrary to Doyle's suggestion, the above quoted language in
Hatley was inconclusive dictum, which merely alluded to the pretext issue, but did not express this court's
recognition of the would test as the proper test for pretext issues. Taylor, 111 Nev. at 1260, 1262, 903 P.2d at
809-10, 811 (Steffen, C. J., concurring in result). The would test was not squarely addressed or embraced by
this court until Alejandre was decided. The failure of counsel to anticipate a change in the law does not
constitute ineffective assistance. Parker v. Bowersox, 188 F.3d 923, 929 (8th Cir. 1999); see also Leonard v.
State, 114 Nev. 639, 659-60, 958 P.2d 1220, 1235 (1998), cert. denied, 525 U.S. 1154 (1999). This is true even
where, as here, the theory upon which the court's later decision is based is available, although the court had not
yet decided the issue. See Ruff v. Armontrout, 77 F.3d 265, 268 (8th Cir. 1996).
[Headnote 6]
Likewise flawed is Doyle's reasoning that because Alejandre was decided while Doyle's appeal was
pending,
116 Nev. 148, 157 (2000) Doyle v. State
was decided while Doyle's appeal was pending, he would have been entitled to application of Alejandre's test
had counsel preserved the issue for appeal. In Gama, which we decided on July 22, 1996, we adopted a new rule
for determination of claims of pretext. [A] new rule for the conduct of criminal prosecutions is to be applied
retroactively to all cases, state or federal, pending on direct review or not yet final at the time the decision
announcing the rule is rendered. Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Under Griffith, any new rule
applies retroactively to all cases pending on direct review or not yet final . . . [and] [t]his is quite obviously
equally true of [a] new ruling narrowing Fourth Amendment rights. 5 Wayne R. LaFave, Search and Seizure
11.5(d), at 358 (3d ed. 1996). See also State v. Thomas, 714 So. 2d 1176, 1177 (Fla. Dist. Ct. App. 1998)
(applying Whren retroactively). A case is final when a judgment of conviction has been rendered, the
availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari
finally denied. Griffith, 479 U.S. at 321 n.6. This court rendered its decision in Doyle's direct appeal on July
22, 1996, the same date we decided Gama, and Doyle subsequently petitioned for rehearing. This court denied
Doyle's petition for rehearing on June 23, 1997. Clearly Doyle's case had not become final prior to this court's
ruling in Gama, and therefore Gama's could test would apply to any pretext claim made by Doyle.
[Headnote 7]
Furthermore, we conclude that Doyle has not demonstrated that his arrest was invalid even under Alejandre's
would test. His assertion of pretext is speculative at best. Doyle put forth no evidence of the circumstances
leading to the parole officer's decision to arrest other than evidence showing that Doyle had not been arrested for
prior repeated violations of his parole conditions. The fact that Doyle's parole officer did not arrest Doyle until
after giving him numerous warnings for parole violations over the course of four months does not establish that
he would have been permitted to remain free indefinitely absent police officers' intent to question him regarding
Mason's murder. Thus, Doyle has not demonstrated that a reasonable parole officer would not have arrested him
for repeatedly violating the conditions of his parole absent the police officers' intent to question him for the
murder.
Accordingly, Doyle has failed to show that a motion to suppress based upon Alejandre's would test would
have been meritorious. Therefore, we conclude that Doyle was not prejudiced by his counsel's failure to
challenge admission of his statement to police.
116 Nev. 148, 158 (2000) Doyle v. State
II. Failure to challenge the admissibility of the fruits of a search of Doyle's home on the basis that the search
warrant was not based on probable cause
Doyle argues that the district court erred in concluding that trial counsel were not ineffective for failing to
seek suppression of a pair of denim pants and a pair of shoes which were recovered during a search of Doyle's
residence pursuant to a search warrant. The shoes were used by the State to tie Doyle to the crime scene and
injuries to Mason's body. Doyle contends that a motion to suppress this evidence would have been meritorious
because the search warrant allowing for its seizure was not supported by probable cause. Doyle attacks the
affidavit underlying the search warrant on grounds that the affidavit (1) was based on information furnished by
an unreliable informant and insufficiently corroborated; (2) failed to show a nexus between the place to be
searched, Doyle's residence, and the items to be seized therefrom; and (3) omitted information and was
misleading. We disagree.
[Headnotes 8-10]
Whether probable cause is present to support a search warrant is determined by a totality of circumstances.
Illinois v. Gates, 462 U.S. 213, 238 (1983); Keesee v. State, 110 Nev. 997, 1002, 879 P.2d 63, 67 (1994). A
deficiency in either an informant's veracity and reliability or his basis of knowledge may be compensated for,
in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of
reliability. Gates, 462 U.S. at 233. Further, the issuing judge's determination of probable cause should be given
great deference by a reviewing court. Id. at 236. A grudging or negative attitude by reviewing courts toward
warrants,' is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a
warrant; courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a
common-sense, manner.' Id. (alterations in original) (internal citation omitted) (quoting United States v.
Ventresca, 380 U.S. 102, 108-09 (1965)). The duty of a reviewing court is simply to determine whether there is
a substantial basis for concluding that probable cause existed. Id. at 238-39; Keesee, 110 Nev. at 1002, 879 P.2d
at 67.
[Headnotes 11, 12]
We conclude that the affidavit here demonstrates a substantial basis for concluding that probable cause
existed. The veracity of the informant may have been questionable based on the fact that he was incarcerated at
the time of his tip to police. However, the information furnished by him was corroborated by details from the
crime scene not released to the public, further investigation by police,
116 Nev. 148, 159 (2000) Doyle v. State
the crime scene not released to the public, further investigation by police, and statements from two other
witnesses. Therefore, we conclude that any deficiency in his reliability was adequately compensated.
[Headnotes 13, 14]
We reject Doyle's contention that the affidavit failed to demonstrate an adequate nexus between his residence
and the items to be seized therefrom. Probable cause requires a showing of trustworthy facts and circumstances
which would cause a person of reasonable caution to believe that it is more likely than not that the specific items
to be searched for are: seizable and will be found in the place to be searched. Keesee, 110 Nev. at 1002, 879
P.2d at 66. Our review of the facts set forth in the affidavit shows probable cause to believe that items used in
the crime and sought to be seized would be found at Doyle's residence.
[Headnotes 15, 16]
Moreover, Doyle has failed to show that any information omitted from the affidavit or stated in an allegedly
misleading manner would have undermined the probable cause determination. A defendant is not entitled to
suppression of the fruits of a search warrant, even based on intentional falsehoods or omissions, unless probable
cause is lacking once the false information is purged and any omitted information is considered. See Franks v.
Delaware, 438 U.S. 154, 155-56 (1978) (addressing falsehoods); United States v. Cronan, 937 F.2d 163, 165
(5th Cir. 1991) (addressing omissions); see also Point v. State, 102 Nev. 143, 150, 717 P.2d 38, 43 (1986),
disapproved of on other grounds by Stowe v. State, 109 Nev. 743, 857 P.2d 15 (1993). Here, considering the
omitted information and purging the information claimed to be misleading, we conclude that the affidavit
sufficiently demonstrates probable cause.
A motion to suppress evidence seized from Doyle's residence on the grounds of an invalid search warrant
would not have been meritorious. Thus, Doyle has failed to demonstrate prejudice to support his claim of
ineffective counsel.
III. Failure to object to admission into evidence of stained pants
Doyle claims that the district court erred in concluding that trial counsel were not ineffective for failing to
object to admission into evidence of the denim pants recovered during a search of the bedroom closet in Doyle's
residence. Doyle specifically argues that the pants were not relevant evidence and their admission into evidence
prejudiced him because the pants were stained with some unidentified substance, which the jury might have
inferred was Mason's blood. We conclude that the district court did not err.
116 Nev. 148, 160 (2000) Doyle v. State
[Headnote 17]
Even assuming that the state failed to demonstrate the relevance of this evidence, Doyle has not shown that
he was prejudiced by its admission at trial. The other evidence adduced in support of Doyle's guilt was strong.
Additionally, Doyle does not dispute the court's findings that the pants were introduced in a perfunctory manner
without comment or further reference. We further note that the officer through whose testimony the pants were
introduced testified only that the pants were seized out of an abundance of caution. No testimony or argument
suggested that the stain was blood. In light of the foregoing facts, we conclude that Doyle has failed to
demonstrate that, but for deficient performance of counsel, the result of trial would probably have been different.
IV. Failure to object to admission into evidence and projection display of multiple autopsy photographs
Doyle contends that the district court erred in concluding that trial counsel were not ineffective for failing to
object to the admission and projection display of color autopsy photographs depicting injuries to Mason's body.
Doyle argues that the photographs were cumulative and gruesome, were inadmissible because the cause of
death was not disputed, and should not have been displayed to the jury through a projection system. We
conclude that Doyle's contentions lack merit.
[Headnotes 18-20]
Doyle has not shown that any of the photographs were duplicative, and we conclude that all were relevant
to the cause of death and manner of injury. Most of the photographs depicted patterns on Mason's body
consistent with footwear impressions and were additionally relevant to show the relationship between Mason's
injuries and the soles of shoes found in Doyle's possession. Trial counsel relied on some of these photographs to
support Doyle's defense of mere presence. Therefore, it is apparent that defense counsel made a strategic
decision not to object to these photographs. Counsel's strategy decisions are not subject to challenge absent
extraordinary circumstances. Doleman v. State, 112 Nev. 843, 848, 921 P.2d 278, 280-81 (1996). Two of the
photographs depict injuries to Mason's head and face, and are gruesome. However, even gruesome
photographs are admissible if they aid in ascertaining the truth, such as when used to show the cause of death,
the severity of wounds and the manner of injury. Browne v. State, 113 Nev. 305, 314, 933 P.2d 187, 192 (1997);
Domingues v. State, 112 Nev. 683, 695, 917 P.2d 1364, 1373 (1996).
116 Nev. 148, 161 (2000) Doyle v. State
[Headnotes 21, 22]
Doyle's argument that the autopsy photographs could not be utilized to show the cause of death where he did
not dispute it is without merit. By pleading not guilty, a defendant puts all elements of the offense at issue.
Sonner v. State, 112 Nev. 1328, 1338-39, 930 P.2d 707, 714 (1996), modified in part on other grounds on
rehearing, 114 Nev. 321, 955 P.2d 673, cert. denied, 525 U.S. 886 (1998). Therefore, in the wake of Doyle's not
guilty plea, the photographs were admissible to prove the State's case with essential facts relating to Mason's
murder.
[Headnotes 23-25]
We similarly reject Doyle's contention related to the display of the photographs. Here, the photographs were
briefly projected onto a screen to aid the medical examiner in explaining his findings related to the cause of
death and the manner of injury to the jury. While this court has not addressed the display of autopsy photographs
through projection systems, we note that other state courts have approved of this method of facilitating the
testimony of a medical examiner. See, e.g., People v. Harris, 633 P.2d 1095, 1098 (Colo. Ct. App. 1981) (no
error in permitting autopsy photographs to be displayed to jury via projected color slides); Keperling v. State,
699 A.2d 317, 319 (Del. 1997) (where photographic slides are admissible evidence, allowing their projection
before jury does not constitute error); Ottis v. State, 496 S.E.2d 264, 269 (Ga. 1998) (projection method of
presenting photographs of murder victim is permissible absent distortion or disproportion of what is depicted).
This court has previously approved of the use of enlargements for such purposes. See Thomas v. State, 114 Nev.
1127, 1141, 967 P.2d 1111, 1120-21 (1998) (enlarged diagram of murder victim's body), cert. denied, 528 U.S.
830 (1999); see also Lloyd v. State, 94 Nev. 167, 169, 576 P.2d 740, 742 (1978) (enlarged photograph depicting
injuries to rape victim). Additionally, we have long recognized the generally sanctioned rule that images
properly admissible as photographs may be projected to illustrate the testimony of witnesses. State v. Kuhl, 42
Nev. 185, 204, 175 P. 190, 196 (1918). We are thus persuaded that where autopsy photographs are admissible, it
is permissible to project the same images onto a screen as a means of assisting a medical examiner in explaining
his or her findings relevant to the issues before a jury. Moreover, we conclude that under the circumstances
present here no error resulted from the projection display of autopsy photographs.
The district court would have been within its discretion in overruling any objection to the admission and
projection display of the autopsy photographs.
116 Nev. 148, 162 (2000) Doyle v. State
autopsy photographs. Therefore, we fail to perceive any prejudice to Doyle to warrant relief on his claim of
ineffective counsel.
V. Failure to request a jury instruction and failure to object to the instructions given on sexual assault
Doyle argues that the district court erred in denying relief based on Doyle's contention that trial counsel
were ineffective for failing to request a jury instruction stating that sexual penetration of a dead body does not
constitute sexual assault and for failing to object to the instruction given on sexual assault. We disagree.
[Headnote 26]
Doyle attempts to demonstrate prejudice by stating that any error as to the jury instruction on sexual assault
was not preserved for appeal. However, Doyle fails to demonstrate the existence of any meritorious issues
related to the jury instruction on sexual assault. We note that we have already determined on Doyle's direct
appeal that the sexual assault instruction given did not constitute plain error. Doyle, 112 Nev. at 900, 921 P.2d
at 915. Moreover, Doyle concedes that any prejudice may have been alleviated by this court's reversal on direct
appeal of his conviction for sexual assault. For these reasons, we conclude that Doyle has failed to demonstrate
prejudice flowing from the failure to preserve for appeal issues related to the jury instruction on sexual assault.
[Headnote 27]
Doyle further argues that counsel's failure to ensure that the jury was properly instructed during the guilt
phase resulted in the jury's belief that Doyle committed a sexual assault. This, he contends, may have tipped the
scales in the jury's decision to return a verdict of death. In support of his argument, he points to the fact that in
the penalty phase the jury was instructed that it could find as an aggravator to first-degree murder that the
murder was committed while the person was engaged in the commission of or an attempt to commit any sexual
assault. Our review of the record, however, reveals that the jury only found three aggravators: that the murder
was committed by a person under sentence of imprisonment; that the murder was committed while the person
was engaged in the commission of or attempt to commit any first-degree kidnapping; and that the murder was
committed to avoid or prevent a lawful arrest or to effect an escape from custody. Therefore, we conclude that
Doyle has failed to demonstrate that the jury's verdict of death was influenced by counsel's performance in
relation to the jury instruction on sexual assault.
116 Nev. 148, 163 (2000) Doyle v. State
VI. Failure to adequately research issues in preparation for trial and cumulative error
Relying on the same claims of error asserted above, Doyle contends the district court erred in concluding
that trial counsel adequately researched issues in preparation for trial and that cumulative error resulting from
counsel's ineffective assistance did not warrant reversal. However, Doyle has failed to demonstrate that he was
prejudiced by deficient representation. Accordingly, we conclude that these additional claims lack merit.
CONCLUSION
All of Doyle's contentions having failed to meet the Strickland test for ineffective assistance of counsel, we
hereby affirm the judgment of the district court.
____________
116 Nev. 163, 163 (2000) Karadanis v. Washoe County Comm'rs
GEORGE KARADANIS and ROBERT MALOFF, dba SUNDOWNER HOTEL AND CASINO, a Nevada
Partnership; RON DRURY, dba RENO SOUVENIR STATION; KENNETH C. NICKS, and DON
WHITE, Appellants, v. JOANNE BOND, Chairman; MIKE MOULIOT, Vice Chairman; SUE CAMP;
JIM GALLOWAY; and JIM SHAW; Collectively Comprising THE COUNTY COMMISSIONERS
OF WASHOE COUNTY, STATE OF NEVADA; CITY OF RENO, a Municipal Corporation;
TRUCKEE RIVER WATER MANAGEMENT COUNCIL, a Nevada Non-Profit Corporation;
DERMODY PROPERTIES, a Nevada Corporation; DERMODY INDUSTRIAL GROUP, a Nevada
General Partnership; DP OPERATING PARTNERSHIP, L.P., a Delaware Limited Partnership;
TRAMMEL CROW COMPANY, a Delaware Corporation; and UTAH STATE RETIREMENT
FUND, Respondents.
No. 33569
February 3, 2000 993 P.2d 721
Appeal from a district court order granting respondents' motion to dismiss. Second Judicial District Court,
Washoe County; Steven P. Elliott, Judge.
Local business owners challenged County's enactment of sales tax increase to finance railroad grade
separation project. The district court treated City's and County's motion to dismiss as a motion for summary
judgment and granted the motion. Business owners appealed. The supreme court held that: (1) City's loan
commitment was unequivocal,
commitment was unequivocal, and therefore it could be counted towards the written financial commitments the
County was required by statute to receive before imposing the sales tax increase; (2) legislature ratified the City's
and County's acts; and (3) legislature's validation of the County's sales tax ordinance did not violate separation of
powers.
Affirmed.
Glade L. Hall, Reno, for Appellants.
Richard A. Gammick, District Attorney, and Madelyn B. Shipman, Deputy District Attorney, Washoe
County, for Respondents Washoe County Commissioners.
Patricia Lynch, City Attorney, and Merri L. Belaustegui-Traficanti, Deputy City Attorney, Reno, for
Respondent City of Reno.
Lionel Sawyer & Collins and Madelene C. Amendola, Reno, for Respondents Truckee River Water
Management, Dermody Properties, Dermody Industrial, DP Operating, Trammel Crow and Utah State
Retirement.
1. Administrative Law and Procedure.
The district court's and the supreme court's review of a government agency's determination is limited to whether the governmental
body acted arbitrarily or capriciously.
On appeal from district court's summary judgment order regarding a government agency's determination, the supreme court's
determination of whether the government agency acted arbitrarily is de novo, and the supreme court will construe the facts and
evidence in a light most favorable to the non-moving party.
3. Taxation.
Even if City overvalued income from railroad property and if City's special assessment district was invalid, City's resolution
committing to loan more than $60 million for County's railroad grade separation project could be counted towards written financial
commitments the County was required by statute to receive before imposing sales tax increase, where the loan commitment was
unequivocal and the resolution merely referred to the railroad property and the special assessment district as possible sources for loan
repayment.
4. Taxation.
Even if City's commitment to loan more than $60 million for County's railroad grade separation project was not unequivocal, such
commitment could be counted towards written financial commitments the County was required by statute to receive before imposing
sales tax increase, where the legislature enacted a curative statute expressly ratifying the acts of the County and the City.
5. Constitutional Law; Counties.
Legislature's curative amendment validating County's sales tax ordinance for financing of railroad grade separation project did not
violate separation of powers by interfering with judiciary's independence,
separation of powers by interfering with judiciary's independence, even if the amendment applied retroactively, where the district court
had validated the ordinance before enactment of the amendment. Const. art. 3, 1.
The legislature violates the separation of powers principle by retrospectively abrogating judicial pronouncements of the state courts
through a legislative interpretation of the law. Const. art. 3, 1.
It is well within both the legislature's authority and the limits of the separation of powers principle to prospectively amend a
statute, and thereby render a prior judicial decision interpreting that statute void. Const. art. 3, 1.
OPINION
Per Curiam:
SUMMARY
This case concerns the funding of the railroad grade separation project (the project), which seeks to
lower the railroad tracks through downtown Reno. In 1997, after years of attempts at funding the project, the
Nevada State Legislature amended Assembly Bill 291 (the amended statute). This amended statute
authorized the Board of County Commissioners of Washoe County (the Board) to impose a one-quarter
cent sales tax increase. The amended statute, however, contained a condition precedent requiring the City of
Reno (the City) to acquire written financial commitments for half the total cost of the project before the
Board could lawfully enact the sales tax increase.
Thereafter, at a public hearing, the City presented evidence of its written financial commitments, and the
Board passed Bill No. 1223/Ordinance No. 1047 (the sales tax ordinance), which authorized a one-quarter
cent increase of the sales tax in Washoe County. Several local business owners, however, filed a complaint
and a motion for preliminary injunction seeking to enjoin the Board from enacting the sales tax. These local
business owners, which included Kenneth Nicks, Robert White, the owners of the Sundowner Hotel and
Casino, George Karadanis and Robert Maloff, and the owner of the Reno Souvenir Station, Ron Drury
(collectively hereinafter the Sundowner), argued that the statute's condition precedent had not been met
because the City had presented insufficient written financial commitments for half of the cost of the project.
After an evidentiary hearing, the district court dismissed Sundowner's motion and complaint, ruling that
the statute's condition precedent had been met.
dition precedent had been met. Subsequently, Sundowner filed this timely appeal arguing, in part, that the
district court erred in making this ruling. We conclude that Sundowner's arguments lack merit. Accordingly, we
affirm the order of the district court.
STATEMENT OF THE FACTS
The project proposes to lower the Union Pacific Railroad tracks through downtown Reno through the
construction of a 54-foot wide, 2.1 mile below-grade, open trainway trench along the existing Union Pacific
right-of-way. This depressed trainway will be crossed over by eleven Reno streets from Keystone Avenue east to
Sutro Avenue. It is surmised that this project will eliminate eleven at-grade street railroad crossings, and thus
allow the unrestricted flow of vehicles above the railroad tracks. The estimated time period for the completion
of the project is five and one-half years, and the estimated cost is $192,848,096.00. Sundowner, however,
contends that this figure will ultimately be higher because it does not include numerous additional costs, such
as the cost of treatment of contaminated soil and water underlying the railroad tracks and the cost of relocation
or modification of the Amtrak station in Reno.
Although the project has been discussed for many decades, the 1996 merger of the Union Pacific and
Southern Pacific railroads created the opportunity for significantly increased train traffic. Therefore, since
early 1996, the City began developing a funding plan. Part of this funding plan included revenue from a
one-quarter cent increase in sales tax. The sales tax increase was authorized by the Nevada State Legislature in
1997 after amending Assembly Bill 291. The amended statute empowered Washoe County to enact an ordinance
imposing a one-quarter cent sales tax, of which one-eighth cent was dedicated to the project. This statute,
however, contained a condition precedent to the imposition of the tax, which is at issue in this case, requiring
the City to present written financial commitments for one-half of the total cost of the project before the Board
could impose the sales tax.
As the estimated cost of the project was $192,848,096.00, in order to satisfy the statute's condition
precedent, the City was required to provide the Board with a written financial commitment of $96,424,048.00
before the Board could lawfully increase the tax. Because the City believed it had met this condition precedent
by securing financing, the Board scheduled a public hearing, on December 8, 1998, to consider enacting the
sales tax authorized by the statute.
At the public hearing, the City introduced evidence of its funding commitments of money or property,
including: (1) $15,344,689.00 from Union Pacific Railroad, (2) $1,834,024.00 from a federal grant,
from a federal grant, (3) $458,750.00 from the Nevada Department of Transportation, (4) $13,427,947.00 in
Federal Surface Transportation Program funds; and (5) $60,777,774.00 in the form of a loan from the City
authorized by Resolution No. 5557 (Resolution 5557). The loan from the City was to be repaid with non-tax
revenue, including funds generated from a special assessment district comprised of property located near the
project. The special assessment was authorized by the Reno City Council on October 27, 1998.
After the public hearing, the Board enacted the sales tax increase by passing Bill No. 1223, Ordinance No.
1047, and thereby concluding that the condition precedent required by the statute was satisfied. Thereafter, the
Nevada State Legislature passed Senate Bill 255 (S.B. 255) that explicitly ratified the acts of the Board.
On December 7, 1998, however, a day prior to the public hearing, Sundowner filed a complaint and a motion
for a preliminary injunction, which it amended on December 9, 1998. Sundowner sought to enjoin the Board
from enacting the sales tax increase, alleging that it had failed to satisfy the statute's condition precedent to
secure written financial commitments for at least half the cost of the project.
In response to Sundowner's motion for preliminary injunction, the City and Washoe County filed a motion to
dismiss (the motion), alleging that the City had fully satisfied the statute's condition precedent.
After a full evidentiary hearing, the district court granted the City's motion, treating it as a motion for
summary judgment. In granting summary judgment, the district court ruled that the sales tax ordinance was valid,
as the statute's condition precedent requiring financial commitment for half of the project cost had been satisfied.
Sundowner filed this timely appeal, alleging that the district court erred in making the aforementioned ruling.
DISCUSSION
[Headnotes 1, 2]
The district court's and this court's review of a government agency's determination is limited to whether the
governmental body acted arbitrarily or capriciously. See City of Reno v. Folsom, 86 Nev. 39, 44, 464 P.2d 454,
457 (1970). As this is a summary judgment order, however, this court's determination of whether the government
agency acted arbitrarily is de novo, and this court will construe the facts and evidence in a light most favorable
to the non-moving party. See Bulbman, Inc. v. Nevada Bell, 108 Nev. 105, 110, 825 P.2d 588, 591 (1992).
[Headnote 3]
In the present matter, the district court ruled that the sales tax ordinance was valid because the Board did not
act arbitrarily in concluding that the City met the amended statute's condition precedent requiring written
financial commitments for half the cost of the project. We agree with the district court that the Board validly
enacted the sales tax ordinance because the Board had sufficient written financial commitments before it to
support its conclusion that the City had met the statute's condition precedent.
The evidence before the Board included five written funding commitments of money or property: (1)
$15,344,689.00 from Union Pacific Railroad; (2) $1,834,024.00 from a federal grant; (3) $458,750.00 from the
Nevada Department of Transportation; (4) $13,427,947.00 in Federal Surface Transportation Program funds;
and (5) a $60,777,774.00 loan from the City authorized by City Council Resolution No. 5557. Sundowner
argues, however, that this evidence is insufficient to meet the condition precedent under the amended statute, in
part, because the resolution establishing a $60,700,774.00 loan from the City was invalid.
1
Specifically,
Sundowner's attack on the validity of the loan is that there are insufficient sources identified in section two of
Resolution 5557 for repayment because: (1) the income from the Union Pacific property contribution was
overvalued, and (2) there could be no income from the special assessment district because it was unlawfully
created.
We disagree with Sundowner's contention that the resolution was invalid because we see no contingency in
section two of the resolution requiring that the specific sources identified generate enough revenue to repay the
loan. Resolution 5557 provided that:
Section 1. The City hereby commits to expend not less than $60,700,744 on the Project . . . which
can and will be repaid from sources other than the Taxes.
Section 2. The Non-Tax Portion of the Loan will be repaid with payments of special assessments (the
Assessments) to be levied by the City against properties benefited by the Project, certain sources of
income provided by property (the Property) to be transferred to the City by Union Pacific Railroad
(U.P.R.R.), and possibly federal or State grants for which a commitment has not yet been received . . . .
(emphasis added).
__________

1
Sundowner asserts numerous other contentions concerning the validity of the sales tax ordinance and the
resolution, including that they were enacted without authority and contrary to the legislature's intent. We have
considered all contentions raised by Sundowner and conclude that they lack merit.
The plain language of section one of Resolution 5557 sets forth an unequivocal commitment to loan
$60,700,774.00 to be expended on the project. The only contingency established by this language is that the loan
is not to be repaid with tax revenue. Further, although section two of Resolution 5557 identifies several sources
for repayment, including the income generated from the Union Pacific property and the contested special
assessments, the resolution does not mandate that repayment is contingent on the fact that the sources listed
generate enough revenue to repay the loan. Indeed, the City has not even received a commitment, much less a
total dollar amount, for one of the repayment sources listed in section two of the resolutionfederal and state
grants. Based on the plain and unambiguous language of Resolution 5557, we therefore conclude that the
resolution was valid because the City had made a valid commitment to expend $60,700,774.00 on the project
even if the contemplated revenue from the Union Pacific property and the special assessment district is not
realized.
2

[Headnote 4]
As an aside, we note that even if there was such a contingency in the resolution, the legislature has explicitly
ratified the acts of the Board and the City. A legislature may enact a curative statute to validate acts by
municipalities provided both the act validated and the curative statute are constitutional. See Harris v. City of
Reno, 81 Nev. 256, 260, 401 P.2d 678, 680 (1965). In Harris, we considered a challenge by several property
owners to the City Council's authority to enact an ordinance imposing sewer charges on residents. Id. In our
analysis, we reasoned that any doubts concerning the validity of the ordinance had been dispelled by the
legislature's enactment of subsequent curative legislation that provided:
SECTION 1. All of the provisions of [the ordinance] . . . passed and adopted by the city council of
the City of Reno . . . are hereby authorized, ratified, approved and confirmed in all respects.
SEC. 2. This act shall operate to supply such legislative authority as may be necessary to validate
any and all acts performed, or proceedings taken, by or on behalf of the City of Reno, Nevada, pursuant
to, or in anywise appertaining to Ordinance No. 1352.
Id. at 259, 401 P.2d at 679-80 (emphasis added).
Like the curative statute in Harris, the amendment to S.B. 255,
__________

2
Because we conclude that there is no contingency in the resolution, we need not and do not reach
Sundowner's argument concerning the validity of the special assessment district.
expressly ratified the actions of the Board. Indeed, S.B. 255 contains language similar to the curative statute in
Harris, by providing that [the sales tax ordinance] is hereby ratified, validated, approved and confirmed. S.B.
255, 70th Leg. (Nev. 1999). In light of our holding in Harris, we conclude that subsequent curative legislation,
mainly S.B. 255, renders the issue of the validity of the sales tax ordinance moot.
[Headnote 5]
Sundowner, however, raises a novel argument concerning the constitutionality of this curative statute.
Sundowner argues that the curative statute was void because this legislative enactment was unconstitutional, as it
violated the separation of powers doctrine set forth in article 3, section 1 of the Nevada Constitution.
Specifically, Sundowner contends that the legislature unconstitutionally interfered with the discretion and
independence of the judiciary by enacting a curative statute that validated the sales tax ordinance while the issue
of its validity was pending before the district court.
[Headnotes 6, 7]
Indeed, we recognize that the legislature violates the separation of powers principle by retrospectively
abrogating judicial pronouncements of the courts of this state through a legislative interpretation of the law. See
Federal Express Corp. v. Skelton, 578 S.W.2d 1, 8 (Ark. 1979). We also recognize, however, that it is well
within both the legislature's authority and the limits of this state's constitution to prospectively amend a statute,
and thereby render a prior judicial decision interpreting that statute void. See id. at 7.
In the case at bar, we see no constitutional violation of the separation of powers principle in the curative
statute before us. The curative statute did not abrogate a pending judicial controversy because the district court
had already rendered its decision validating the ordinance prior to enactment of the curative statute. Therefore,
in enacting a curative statute several months thereafter, the legislature did not retroactively impact the integrity
of the district court's decision; rather, the legislature merely agreed with the district court's conclusion that the
sales tax ordinance was valid.
Accordingly, we note that even assuming there was some unmet contingency implicit in the resolution that
rendered the loan from the City invalid, the sales tax ordinance was expressly validated by a subsequent curative
statute.
CONCLUSION
We conclude that the Board did not act arbitrarily in ruling that the sales tax ordinance was valid because
the City had met the condition precedent in the statute.
condition precedent in the statute. We further recognize that the legislative validation of this municipal act was
valid and constitutional because there was no retroactive abrogation of a pending judicial controversy. Finally,
we conclude that the district court did not err in ruling that NRS 271.315(1) time barred Sundowner's objection
to the validity of the special assessment district. Accordingly, we affirm the order of the district court granting
summary judgment in this matter.
____________
116 Nev. 171, 171 (2000) Boykins v. State
PATRICIA YVONNE BOYKINS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29716
February 4, 2000 995 P.2d 474
Appeal from judgment of conviction, pursuant to a jury verdict, of one count of involuntary manslaughter
with the use of a deadly weapon. Third Judicial District Court, Lyon County; Mario G. Recanzone, Judge.
Defendant was convicted in the district court of involuntary manslaughter with the use of a deadly weapon,
and was sentenced to prison for a minimum of nineteen months and a maximum term of forty-eight months.
Defendant appealed. The supreme court, Leavitt, J., held that jury was improperly instructed regarding battered
woman syndrome.
Young, J., dissented.
Kenneth V. Ward, Public Defender, Lyon County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Robert E. Estes, District Attorney, and John Paul
Schleglemilch, Deputy District Attorney, Lyon County, for Respondent.
1. Homicide.
Jury instruction in prosecution for involuntary manslaughter improperly limited consideration of battered woman syndrome
evidence to defendant's perceptions that victim's conduct put her in imminent fear of her life or great bodily harm, and failed to reflect
that the syndrome could be used to evaluate defendant's state of mind at the time of the shooting and her claim that the shooting was an
accident. NRS 48.061, 200.200.
2. Criminal Law.
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.
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. Homicide.
Effect of domestic violence on beliefs, behavior, and perception of a defendant is admissible to show the defendant's state of mind
in murder prosecution. NRS 48.061, 200.200.
OPINION
Appellant was charged with first degree murder with the use of a deadly weapon. She asserted
self-defense and claimed that she suffered from battered woman syndrome. An expert testified concerning
the effects of the syndrome on a battered woman's beliefs, behavior, and perceptions. The jury returned a
guilty verdict of involuntary manslaughter with the use of a deadly weapon. Appellant was sentenced to
the Nevada Department of Prisons for a minimum term of nineteen (19) months and a maximum term of
forty-eight (48) months.
FACTS
Appellant Patricia Yvonne Boykins and the victim, Calvin Rochester Swazya were involved in a
non-marital relationship for seven years and cohabited for six years. The couple constantly argued with
resulting instances of verbal and physical abuse. Boykins testified that Swazya would beat her and there
were times when they [sic] were beatings . . . he always hit me, but there were times that were worse than
others. She also testified that she knew, by Swazya's expressions, when the argument would become violent.
Boykins' testimony was corroborated by other witnesses who testified regarding the violent nature of Boykins'
relationship with Swazya.
Boykins was a general manager of the Sagebrush Ranch, a licensed brothel, where Swazya was a
custodian. The relationship between the parties deteriorated, Swazya requested an early paycheck and was
preparing to leave. The couple argued about financial issues for several hours. One witness testified that he
observed Boykins in a corner of her office with her hands raised to protect her face while Swazya was
standing over her with his hand raised as if to slap her. Swazya appeared to be in a rage.
Boykins testified that she began loading a .357 revolver. When Swazya walked toward her, the gun
discharged. Swazya was hit above his left eyebrow and was fatally wounded.
above his left eyebrow and was fatally wounded. Boykins stated that the gun accidentally discharged while she
was trying to load it.
1

Although Boykins told the police and testified that the shooting was accidental, due to the physical evidence,
an accidental discharge was considered unlikely by both the defense and prosecution experts. For this reason,
accidental discharge was not the focus of the defense. Instead, counsel for Boykins argued that Boykins shot
Swazya in self-defense and her insistence in describing the incident as an accident was a product of battered
woman syndrome. Evidence was presented that women who suffer from battered woman syndrome often claim
they accidentally killed their batterer.
The jury convicted Boykins of involuntary manslaughter with the use of a deadly weapon.
2
The trial judge
sentenced Boykins to the Nevada State Prison for a minimum of nineteen (19) months and a maximum term of
forty-eight (48) months without any enhancement.
DISCUSSION
[Headnote 1]
Boykins offered the following jury instruction:
Evidence of battered womens [sic] syndrome can be considered by you, the jury, for the following
purposes[:]
(1) To determine whether the defendant actually believed that she needed to use deadly force.
(2) To determine whether, due to battered womens [sic] syndrome, her belief was reasonable,
and
(3) To assist in determining the credibility of the defendant's testimony.
The district court declined to give this instruction, finding that there were other instructions, specifically
Instruction 34, that adequately advised the jury on the effects of domestic violence to a claim of self-defense
pursuant to NRS 48.061 and 200.200.
[Headnote 2]
Boykins claims that the failure to give the instruction deprived her of a fair trial. A defendant in a criminal
case is entitled, upon request, to a jury instruction on his or her theory of the case,
__________

1
Evidence was presented that due to the model of the revolver, in order to load the gun and close the
cylinder, the gun would have to be pointing down toward the floor.

2
The State filed a motion to correct sentence as to the deadly weapon enhancement. We have held that the
deadly weapon enhancement does not apply to the unintentional crime of involuntary manslaughter. Buschauer
v. State, 106 Nev. 890, 895-96, 804 P.2d 1046, 1049 (1990).
case, so long as there is some evidence, no matter how weak or incredible, to support it. Williams v. State, 99
Nev. 530, 531, 665 P.2d 260, 261 (1983). Boykins asserts that the offered instruction was necessary to eliminate
confusion created by other instructions. Boykins argues that Instruction 34 did not make it clear to the jury that
evidence regarding battered woman syndrome could be considered in evaluating whether a reasonable person
under the circumstances (i.e., suffering from battered woman syndrome) would believe that she was in imminent
fear of her life or great bodily injury. Boykins also contends that Instruction 34 did not address the effect of the
syndrome on her state of mind at the time of the shooting and her claim that the shooting was accidental despite
physical evidence to the contrary. We agree.
Dr. Lenore E. A. Walker
3
testified as an expert witness for Boykins. Dr. Walker [has defined] a battered
woman as one who is repeatedly subjected to any forceful physical or psychological behavior by a man in order
to coerce her to do something he wants her to do without any concern for her rights.' Ann-Marie Montgomery,
Note, State v. Riker, Battered Women under duress: The concept the Washington Supreme Court could not
grasp, 19 Seattle U. L. Rev. 385, 391 (1996) (quoting Lenore E. Walker, The Battered Woman 15 (1980)). Dr.
Walker testified that the abuse must occur twice before a woman can be considered a battered woman. The
district court allowed her great latitude in describing aspects of the battered woman syndrome including the
interaction between the learned helplessness and a process called the three phases of violence (the cycle
theory).
4
Dr. Walker's three phases of violence theory has been described as follows:
This theory describes three distinct phases to a battering relationship. In phase one, the tension
building phase, the batterer indulges in psychological torture of the woman. This torture is followed by
phase two, an acute battering incident, in which the inevitable tension that has built up results in an
uncontrollable discharge of violence. In phase three, the batterer expresses loving contrition by
apologizing profusely and showing kindness and remorse. It is this third phase that is the most
troublesome because the batterer's behavior provides the woman with positive
reinforcement for staying in the relationship.
__________

3
Dr. Walker is a psychologist who has done extensive research on battered woman syndrome. She has
published several articles and books on the subject, and she has testified as an expert on battered woman
syndrome in thirty-five states, five federal courts, and a court in Greece.

4
Dr. Walker indicated learned helplessness occurs when a battered woman is unable to control her batterer's
abuse.
behavior provides the woman with positive reinforcement for staying in the relationship.
This positive reinforcement leads battered women to experience a sense of learned helplessness. The
theory of learned helplessness explains the counter-intuitive nature of the battered woman's responses to
the incessant abuse she suffers . . . .
When a woman realizes that her behavior bears no relationship to the violence she receives, she
develops survival or coping skills that keep [her] alive with minimal injuries. For example, many
battered women become passive after an abusive incident. These coping skills are developed at the
expense of escaping skills, which may include anger and active behavior, skills that would enable the
battered woman to leave the relationship.
The synergistic effects of the cycles of violence and learned helplessness are profound. A symptom of
these effects is hypervigilance, a symptom that all battered women share. Battered women are
hypervigilant to cues of potential danger and are acutely aware of their surroundings. To a battered
woman, otherwise insignificant behaviors such as an eye twitch, a particular tone of voice, or a certain
movement are all things that may signal an impending attack by a male.
Montgomery, supra, at 392-94 (footnotes omitted) (quoting Lenore E. A. Walker, Battered Women Syndrome
and Self- Defense, 6 Notre Dame J.L. Ethics and Pub. Pol'y 321, 326 (1992) & Lenore E. Walker, The Battered
Woman Syndrome (1984)).
Several state courts have accepted evidence of battered woman syndrome:
[[S]eventy-six] percent of the states [thirty-nine] have found expert testimony on battering and its
effects admissible to prove the defendant is a battered woman or suffers from battered woman
syndrome. Nearly as many, [thirty-five] states [sixty-nine percent] have found generic expert
testimony admissible, i.e., to explain battering and its effects generally.
Janet Parrish, Trend analysis: Expert testimony on battering and its effects in criminal cases, 11 Wis. Women's
L.J. 75, 117-18 (1996) (footnote omitted).
The Nevada Legislature recognized the theory in NRS 48.061 as follows:
Evidence of domestic violence as defined in NRS 33.018 and expert testimony concerning the effect
of domestic violence on the beliefs,
lence on the beliefs, behavior and perception of the person alleging the domestic violence is admissible in
chief and in rebuttal, when determining:
1. Whether a person is excepted from criminal liability pursuant to subsection 7 of NRS 194.010,
[5]
to show the state of mind of the defendant.
2. Whether a person in accordance with NRS 200.200
[6]
has killed another in self-defense, toward
the establishment of the legal defense.
[Headnote 3]
Under Nevada law, the effect of domestic violence on beliefs, behavior, and perception of a defendant is
admissible to show the defendant's state of mind. However, battered woman syndrome is not a complete
defense. The United States District Court for the District of Kansas explains:
[B]attered woman syndrome is not a defense. It is some evidence to be considered to support a defense,
such as self-defense, duress, compulsion, and coercion. Because women who suffer from the battered
woman syndrome do not act in a typical manner as compared with women who do not suffer from it,
evidence of the syndrome is used to explain their behavior. Evidence of [battered woman] syndrome is
presented through expert testimony to assist the jury's evaluation of the defendant's state of mind.
U.S. v. Brown, 891 F. Supp. 1501, 1505 (D. Kan. 1995) (citation omitted).
NRS 48.061 is modeled after Oklahoma's Battered Woman Statute. See Hearing on A.B. 637 Before the
Assembly Comm. on Judiciary, 67th Leg. (Nev., May 27, 1993), Exhibit E; Senate Daily Journal,
__________

5
NRS 194.010 provides in pertinent part as follows:
All persons are liable to punishment except those belonging to the following classes:
. . . .
7. Persons, unless the crime is punishable with death, who committed the act or made the omission
charged under threats or menaces sufficient to show that they had reasonable cause to believe, and did
believe, their lives would be endangered if they refused, or that they would suffer great bodily harm.

6
NRS 200.200 states as follows:
If a person kills another in self-defense, it must appear that:
1. The danger was so urgent and pressing that, in order to save his own life, or to prevent his
receiving great bodily harm, the killing of the other was absolutely necessary; and
2. The person killed was the assailant, or that the slayer had really, and in good faith, endeavored to
decline any further struggle before the mortal blow was given.
Daily Journal, A.B. 637, at 27 (67th Leg. Nev., June 26, 1993). Oklahoma's Statute located at 40.7 of Title 22
contains the following: In an action in a court of this state, if a party offers evidence of domestic abuse,
testimony of an expert witness concerning the effects of such domestic abuse on the beliefs, behavior and
perception of the person being abused shall be admissible as evidence. After Oklahoma passed the Battered
Woman Syndrome Statute, an Oklahoma court examined a newly revised jury instruction and stated that the jury
instruction was consistent with the new statute. See Bechtel v. State, 840 P.2d 1, 11 (Okla. Crim. App. 1992).
The revised jury instruction contained the following:
A person is justified in using deadly force in self-defense if that person believed that use of deadly force
was necessary to protect herself from imminent danger of death or great bodily harm. Self-defense is a
defense although the danger to life or personal security may not have been real, if a person, in the
circumstances and from the viewpoint of the defendant, would reasonably have believed that she was in
imminent danger of death or great bodily harm.
Id.
The theory behind the use of evidence regarding domestic violence and the battered woman syndrome
centers upon the state of mind of the individual who has been subjected to such violence. Self-defense is shown
when a person, under the circumstances, reasonably believes she is in imminent danger of death or great bodily
harm, even if no actual threat exists. Where the circumstances include domestic violence, the battered woman
syndrome is relevant to the reasonableness of an individual's belief that death or great bodily harm is imminent.
The district court gave a number of instructions to the jury that dealt with the concept of self-defense.
7
Of
the twelve instructions involving issues of self-defense, only one, Instruction 34, discusses the relationship
between domestic violence or the battered woman syndrome and Boykins' claim of self-defense.
Instruction 34 did not properly encompass Boykins' theory of the case. The instruction limits the
consideration of the battered woman syndrome evidence to Boykins' perceptions that Swazya's conduct put her
in imminent fear of her life or great bodily harm. It did not reflect that the syndrome could be used to evaluate
Boykins' state of mind at the time of the shooting and her claim that the shooting was an accident.
The failure to give an instruction regarding Boykins' state of mind was compounded by the
wording of the eleven other instructions encompassing the law on self-defense.
__________

7
Instructions 23, 24, 25, 26, 27, 28, 29, 30, 31, 33, 34 and 36 all involved self-defense and the concept of
what constitutes a reasonable belief that death or great bodily injury is imminent.
mind was compounded by the wording of the eleven other instructions encompassing the law on self-defense.
Many of the instructions did not contain any language that the reasonableness of a person's belief must be
considered under the circumstances that existed when the belief was formed. For example, Instruction 23
indicated that deadly force was only authorized when a person believes with good reason that such force is
necessary to prevent great bodily harm. Good reason is not the equivalent of good reason under the
circumstances. The lack of consistency amongst the various self-defense instructions together with the failure to
give an instruction regarding the relationship between a person's state of mind and the battered woman syndrome
constitutes error. Although we are mindful of the fact, as pointed out by the dissent, that Boykins was not
convicted of first degree murder, we cannot conclude that the failure to properly instruct the jury is harmless
error.
CONCLUSION
The district court allowed evidence of the battered woman syndrome and correctly refused to allow the
expert witness to testify on the ultimate issue that appellant was suffering from the syndrome. See Townsend v.
State, 103 Nev. 113, 734 P.2d 705 (1987). However, the trial court failed to properly instruct the jury on
Boykins' theory that battered woman syndrome should be considered by the jury not only as to the
reasonableness of Boykins' conduct, but as to her state of mind at the time of the shooting. Therefore, the case
must be reversed and remanded for a new trial. At the new trial, the court should give the following instruction:
You have heard expert testimony concerning the effect of domestic violence on the beliefs, behavior,
and perception of a woman who may be suffering from battered woman syndrome. The defendant asserts
that she was suffering from battered woman syndrome at the time of the killing. This, in itself, is not a
legal defense. However, if you believe that the defendant was suffering from battered woman syndrome,
you may consider such evidence when determining the defendant's state of mind at the time of the killing
and whether she acted in self-defense. You may also consider such evidence as to the defendant's
credibility and the reasonableness of her belief that she was about to suffer imminent death or great
bodily harm and the need to slay an aggressor.
By reason of the foregoing, the case is reversed and remanded for a new trial in accordance with the views
expressed herein.
Rose, C. J., Maupin, Shearing, Agosti and Becker, JJ., concur.
Young, J., dissenting:
I respectfully dissent. I conclude that battered woman syndrome is inapplicable to the instant matter. Even
assuming that battered woman syndrome is relevant to this case, I further conclude that the district court properly
refused Boykins' proffered jury instruction.
The majority states that Boykins asserted self-defense. After a careful review of the entire record on appeal, I
conclude that the record belies the majority's statement. In fact, Boykins consistently maintained that the
shooting was accidental while her attorney pursued a theory of self-defense based on battered woman syndrome.
Between the time of the shooting and the beginning of the trial, Boykins gave several versions of events
surrounding the shooting with each version containing changed details. Most importantly, Boykins gave two
different versions of the actual shooting. Within hours of the shooting, Boykins told two separate police officers
that the gun went off when she closed the cylinder while loading it. Boykins testified at trial nearly a year later
that the incident occurred differently. Boykins testified that as Swazya approached her, she pointed the gun at
him while holding it with both hands. Boykins pulled the hammer back on the gun in order to scare him.
Boykins then decided to turn and leave, but she stumbled into a desk and chair while still pointing the gun at
Swazya. At that time, Boykins testified that the gun accidentally discharged. There were no other witnesses to
the shooting. Though Boykins changed her description of the shooting, she has nonetheless remained consistent
about the accidental nature of the shooting. Boykins has never indicated that she intentionally shot and killed
Swazya.
In State v. Hanson, 793 P.2d 1001 (Wash. Ct. App. 1990), the defendant was convicted of second degree
murder. She asserted that the trial court erred in excluding testimony regarding battered woman syndrome. The
Washington Court of Appeals held that the defendant's offer of proof regarding battered woman syndrome
testimony was insufficient. Even if it reached the issue of the relevancy of battered woman syndrome testimony,
the court determined that expert testimony concerning battered woman syndrome was not relevant in this case
because the defendant asserted that she accidentally shot and killed the victim. Thus, the court stated that the
battered woman syndrome testimony would only be relevant where the defendant intentionally shot the victim
and then claimed self-defense. Id. at 1002-04; see also State v. Sallie, 693 N.E.2d 267, 270 (Ohio 1998)
(holding that defendant's attorney was not ineffective because testimony concerning battered
woman syndrome was irrelevant where defendant claimed that the shooting was
accidental).
was not ineffective because testimony concerning battered woman syndrome was irrelevant where defendant
claimed that the shooting was accidental).
In the instant matter, Boykins similarly maintained that she shot Swazya accidentally. Thus, battered woman
syndrome testimony is simply irrelevant because the testimony only relates to a claim of self-defense, and
self-defense only arises to legally justify a killing. If the killing is an accident, legal justification is not required.
Moreover, at trial and on appeal, Boykins relied solely on People v. Humphrey, 921 P.2d 1 (Cal. 1996), in which
the California Supreme Court held that battered woman syndrome testimony is admissible. The district court
specifically rejected Boykins' reliance on Humphrey based on Nevada law. Further, Humphrey is easily
distinguishable from the instant matter. In Humphrey, the defendant consistently maintained that she
intentionally shot and killed the victim, whereas Boykins steadfastly claimed that she shot Swazya accidentally.
In addition, the Humphrey court based its decision on section 1107 of the California Evidence Code, which is
substantially different from Nevada's statutory framework. Therefore, I conclude that Humphrey provides no
support for Boykins' argument.
At trial, Boykins and her attorney asserted two opposing theories of the shooting. As the Hanson court stated,
[I]t would be a strange anomaly if the same evidence could support two diametrically opposed theories of how
the death ensued, by intentional self-defense or by accident. Hanson, 793 P.2d at 1003. Boykins and her
attorney cannot have it both ways in pursuing patently inconsistent theories of the shooting. Accordingly, I
conclude that battered woman syndrome testimony is inapplicable to this case because there is no need to
explain or justify why Boykins intentionally shot Swazya since Boykins consistently maintained for nearly a year
that the shooting was an accident.
Even if testimony concerning battered woman syndrome is relevant, Nevada's statutory framework explicitly
indicates how this testimony can be used at trial. NRS 48.061 provides, in part:
Evidence of domestic violence as defined in NRS 33.018 and expert testimony concerning the effect of
domestic violence on the beliefs, behavior and perception of the person alleging the domestic violence is
admissible in chief and in rebuttal, when determining:
. . . .
2. Whether a person in accordance with NRS 200.200 has killed another in self-defense, toward the
establishment of the legal defense.
(Emphasis added.)
NRS 200.200 states, in part:
2. The person killed was the assailant, or that the slayer had really, and in good faith, endeavored to
decline any further struggle before the mortal blow was given.
(Emphasis added.)
Thus, when the statutes are read together, evidence of domestic violence is clearly admissible when a theory
of self-defense is presented. Consequently, evidence of domestic violence and expert testimony concerning the
effects of domestic violence on a defendant's beliefs, behavior, and perceptions are admissible only in relation to
the defendant's perception of imminent danger and the defendant's perceived need to use deadly force.
Instruction 34 provided:
During this trial, there has been evidence presented relating to the effect that Battered Woman Syndrome
may have had on the defendant. You, as Jurors, may only use that evidence insofar as it relates to the
defendant's perceptions that:
1. the danger was so urgent and pressing that, in order to save her own life, or to prevent her from
receiving great bodily harm, the killing of Calvin[ ] Rochester Swazya was absolutely necessary, and
2. to determine whether the defendant actually believed that she needed to use deadly force.
Thus, I conclude that the district court properly instructed the jury on evidence relating to the effects of
domestic violence and its application to Boykins' theory of self-defense. Instruction 34 accurately stated Nevada
law by integrating NRS 48.061 and NRS 200.200. Indeed, the instruction echoes the language of NRS
200.200(1). Moreover, pursuant to NRS 48.061, the instruction expressly limits the use of this type of evidence
to Boykins' perceptions. Accordingly, I conclude that the district court did not err in giving Instruction 34
because it properly limited the use of evidence of domestic violence.
In contrast, Boykins' proffered instruction fails to incorporate the language of NRS 200.200. For example,
the proffered instruction fails to include an imminency element as required under NRS 200.200(1). Furthermore,
NRS 48.061 and NRS 200.200 do not discuss the applicability of domestic violence evidence to a witness's
credibility. Nonetheless, Boykins' proffered instruction sought to admit this evidence in an apparent attempt to
reconcile the inconsistent versions of the accidental shooting that she relayed to others.
relayed to others. Indeed, by finding Boykins guilty of involuntary manslaughter, the jury apparently believed
her testimony that she shot Swazya accidentally.
If either Boykins' proffered instruction or the majority's proposed instruction is used, it would rest on the
premise that the jury should completely disregard testimony given under oath by Boykins that she did not intend
to shoot Swazya. Instead, the premise of either such instruction would be that Boykins really did not understand
what happened; but that with the insight provided by psychiatric testimony, she intended to kill him all along.
This would require the jury to engage in mental gymnastics that only the science of psychiatry could understand.
Moreover, it is important to point out that the verdict was the result of a remarkably comprehensive
deliberative process. The trial lasted ten days, and the jury received upwards of fifty jury instructions. The jury
also deliberated for more than fifteen hours. After hearing all the evidence and even after the lengthy testimony
provided by Boykins' expert, Dr. Lenore E. A. Walker, the jury accepted Boykins' testimony that she shot
Swazya accidentally and clearly rejected the alternative defense theory based on battered woman syndrome. The
jury apparently favored the testimony of the State's expert, Dr. Alice S. Brill, that Boykins did not fit the typical
profile of a battered woman. For example, Boykins successfully managed a brothel with dozens of employees,
she was financially independent, and earned approximately $65,000 annually for her work at the brothel.
Moreover, Boykins had previously exhibited aggressive and dominant personality characteristics. In addition,
Swazya's ex-wife testified that he had never physically abused her during their eighteen-year marriage. For these
reasons, I believe that the jury's decision after fifteen hours of deliberation should not be lightly reversed.
1

Additionally, the district court expressly found that the self-defense instructions and Instruction 34
sufficiently covered the subject of Boykins' proffered instruction.
2
It is well-settled that if a proffered
instruction misstates the law or is adequately covered by other instructions, it need not be given. Barron v.
State, 105 Nev. 767, 773, 783 P.2d 444, 448 (1989). Nonetheless, the majority concludes that the district court
committed reversible error because Instruction 34 did not permit evidence of battered woman syndrome to
be used to evaluate Boykins' state of mind or the reasonableness of her actions.
__________

1
It is important to note that the Department of Parole and Probation paroled Boykins on June 11, 1998.
Boykins was then discharged from parole on January 29, 1999.

2
As previously noted, Boykins only offered People v. Humphrey, 921 P.2d 1 (Cal. 1996), in support of her
proposed instruction. Humphrey involved an admittedly intentional killing. See id. at 3-4. It was Boykins'
responsibility to provide authority in support of her position. This was not done, and she cannot now be heard to
complain.
woman syndrome to be used to evaluate Boykins' state of mind or the reasonableness of her actions.
However, NRS 48.061 and NRS 200.200 do not permit evidence concerning battered woman syndrome to be
used in order to evaluate Boykins' state of mind or the reasonableness of her actions. A consideration of Boykins'
state of mind and the reasonableness of her actions is the proper subject of self-defense instructions. In this case,
the district court gave no less than twelve self-defense jury instructions regarding issues related to Boykins' state
of mind and the reasonableness of her actions. Importantly, Boykins did not object to any of the self-defense
instructions, which would typically preclude appellate review. See Etcheverry v. State, 107 Nev. 782, 784-85,
821 P.2d 350, 351 (1991) (holding that failure to object to jury instruction at trial bars appellate review). Even
assuming that the self-defense instructions contain minor inconsistencies, I conclude that Instruction 34 and the
twelve self-defense jury instructions adequately cover Nevada law. Accordingly, I view the majority's attempt to
integrate the jury instructions regarding self-defense and battered woman syndrome as confusing and
unnecessary.
Simply put, I believe that battered woman syndrome is inapplicable based on the facts of this case. Even if
testimony concerning battered woman syndrome is considered relevant, I believe that Boykins' proffered
instruction and the majority's proposed instruction overstate the admissibility of evidence concerning domestic
violence. Both NRS 48.061 and NRS 200.200 clearly provide for when and how evidence of domestic violence
may be used. Instruction 34 properly abides by these statutes, whereas Boykins' proffered instruction and the
majority's proposed instruction do not. Domestic violence is no doubt a serious problem. However, by going
beyond the plain language of NRS 48.061 and NRS 200.200, I fear that the majority embarks upon a dangerous
path of incrementally broadening the application of self-defense claims without the legislature's explicit
approval. Our duty is to interpret laws enacted by the legislature, not make our own when we deem it desirable.
Accordingly, I dissent.
3

__________

3
In this dissent, I reluctantly use the term battered woman syndrome. The term connotes more than the
legislature apparently deemed admissible. The term does not appear in NRS 48.061 or NRS 200.200. The
original version of NRS 48.061 included the term domestic abuse syndrome. See A.B. 637, 67th Leg. (Nev.,
May 17, 1993). However, the legislature subsequently adopted NRS 48.061 in its current form and excluded
references to domestic abuse syndrome. See 1993 Nev. Stat., ch. 346, 1-2, at 1107. Thus, I prefer the
explicit language of NRS 48.061 and NRS 200.200 instead of the term battered woman syndrome or
domestic abuse syndrome.
____________
116 Nev. 184, 184 (2000) State v. Conners
THE STATE OF NEVADA, Appellant, v. SATAN RENEE CONNERS, Respondent.
No. 33964
February 4, 2000 994 P.2d 44
Appeal from an order of the district court suppressing evidence. Fifth Judicial District Court, Nye County;
John P. Davis, Judge.
In drug prosecution, the district court granted defendant's motion to suppress evidence, and state appealed.
The supreme court held that police officer conducting a Terry pat-down search of an individual's clothing
violates the individual's Fourth Amendment rights by continuing to feel an unidentified object after ruling out
that the object could be a weapon.
Affirmed.
Frankie Sue Del Papa, Attorney General, Carson City; Robert S. Beckett, District Attorney, and Marla
Zlotek, Deputy District Attorney, Nye County, for Appellant.
Gensler & Kuehn and Harry R. Gensler, Public Defender, Nye County, for Respondent.
Under the plain-feel doctrine, a police officer conducting a Terry pat-down search of an individual's clothing violates the
individual's Fourth Amendment rights by continuing to feel an unidentified object after ruling out that the object could be a weapon.
2. Arrest; Searches and Seizures.
Under the plain-feel doctrine, police officer violated defendant's Fourth Amendment rights when, during a Terry frisk, he
continued to feel the object in defendant's pocket even after determining that it was not a weapon. Officer felt something small in
defendant's pocket with an open hand and immediately ruled out that the object was a knife, gun, dirk, dagger, or other hidden
instrument for the assault of a police officer, yet continued to palpate the object, changing his hand so as to feel the object with his
fingertips before discovering that the item was a vial of the size and shape commonly used to contain contraband. U.S. Const. amend.
4.
OPINION
Per Curiam:
[Headnote 1]
The question before us is whether a police officer conducting a Terry pat-down search of an
individual's clothing violates an individual's Fourth Amendment rights by continuing to
feel an unidentified object after ruling out that the object could be a weapon.
Terry
1
pat-down search of an individual's clothing violates an individual's Fourth Amendment rights by
continuing to feel an unidentified object after ruling out that the object could be a weapon. Applying the
plain-feel doctrine announced in Minnesota v. Dickerson, 508 U.S. 366 (1993), we answer this question in the
affirmative and conclude that the methamphetamine evidence seized from respondent Satan Renee Conners is
the fruit of an unconstitutional search.
FACTS
One night in Pahrump, Nevada, in March 1998, Nye County Deputy Sheriff Jan Moore stopped Conners for
speeding on a motorcycle and failing to stop at a stop sign. When Deputy Moore approached, Conners was
visibly nervous, gave inconsistent answers about who owned the motorcycle, and repeatedly placed his hands in
the front pockets of his jeans despite Deputy Moore's instructions to the contrary. Conners was unable to
accurately state the make and model of the motorcycle. The motorcycle also did not have a license plate.
At that point, a friend of Conners in another vehicle stopped at the scene. Deputy Moore asked Conners to
whom the motorcycle belonged, and Conners replied that it belonged to the individual in the vehicle. Conners
stated that he sold the bike to him six months earlier. Deputy Moore then approached the second vehicle and
asked Conners' friend to whom the motorcycle belonged. The man replied that it was his and that he had
purchased it from Conners about two weeks earlier. Suspecting the motorcycle might be stolen, Deputy Moore
placed Conners in handcuffs, but did not arrest him.
2

Deputy Moore then conducted a pat-down search of Conners to check for weapons. In the course of the
pat-down search, Deputy Moore felt a small, hard object in Conners' right front pocket. Deputy Moore changed
his grip to determine what the object was, and deduced that it was a glass vial commonly used to contain
methamphetamine. Deputy Moore reached in Conners' pocket and extracted the vial. It contained a white
powdery substance, which Deputy Moore identified as methamphetamine. Deputy Moore then arrested Conners
for possession of methamphetamine and various traffic code violations.
The state filed a criminal complaint against Conners, charging him with possession of a controlled
substance.
__________

1
Terry v. Ohio, 392 U.S. 1 (1968).

2
A computer check later revealed that the motorcycle was not stolen. Additionally, the state does not argue
that Deputy Moore had probable cause to arrest Conners. Accordingly, we need not consider the propriety of
the issue of whether the subsequent pat-down search was a custodial search incident to a lawful arrest.
him with possession of a controlled substance. Conners waived his right to a preliminary hearing and was
charged by information with possession of a controlled substance in violation of NRS 453.336.
Conners filed with the district court a pre-trial motion to suppress the methamphetamine. He argued that the
drugs were the fruits of an illegal search of his person. On direct examination by Conners' counsel at the
suppression hearing, Deputy Moore conceded that upon patting the object in Conners' pocket, Moore first ruled
out that it was a firearm, knife, or any other weapon that might be used against Moore. Deputy Moore further
testified that upon determining that the object was not a weapon, Moore changed his grip and determined that it
was, in fact, a vial.
The district court orally granted Conners' motion to suppress, citing Dickerson as the basis for its decision.
This appeal followed.
DISCUSSION
The United States Supreme Court first addressed the plain-feel doctrine in Dickerson. In Dickerson, two
Minneapolis police officers noticed the defendant leaving a residence that they knew to be a notorious crack
house. 508 U.S. at 368. The defendant was walking toward the officers, but immediately stopped and changed
direction upon spotting them. The defendant then turned and entered an alley. Their suspicions aroused, the
officers stopped the defendant. Id. at 368-69.
One of the officers pat-searched the defendant. The officer later testified: [A]s I pat-searched the front of his
body, I felt a lump, a small lump, in the front pocket. I examined it with my fingers and it slid and it felt to be a
lump of crack cocaine in cellophane. Id. at 369. The officer then retrieved the item from the defendant's pocket
and discovered a small plastic bag containing crack cocaine. Id. The defendant challenged the seizure of the
drugs.
In its decision, the United States Supreme Court reiterated its holding in Terry with regard to the permissible
scope of an investigative stop and frisk. A police officer may briefly stop a person to make reasonable
inquiries' into unusual conduct that leads the officer to believe that criminal activity may be afoot.' Id. at
373 (quoting Terry, 392 U.S. at 30). If the officer believes that the individual may be carrying a weapon, he or
she may conduct a pat-down search of the individual in the interest of officer safety. However, [i]f the
protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under
Terry and its fruits will be suppressed. Id. (citing Sibron v. New York, 392 U.S. 40, 65-66 (1968)).
In some instances, however, a police officer conducting a Terry search may seize contraband from
the individual where its identification as contraband is "immediately apparent" to the
officer.
search may seize contraband from the individual where its identification as contraband is immediately
apparent to the officer. This is analogous to the plain-view doctrine,
3
where the officer's means of
perception is sight rather than touch. Id. at 375-76.
The Court applied this plain-feel doctrine to the facts in Dickerson. The record showed that the
Minneapolis police officer did not claim that he suspected the object might be a weapon. In fact, the officer's
testimony revealed that he did not immediately recognize the lump to be crack cocaine. The identification of
the object as contraband came only after the officer manipulated the object within the defendant's pocket a
pocket which the officer already knew contained no weapon. Id. at 378. The Court concluded that the
manipulation of the object in the defendant's pocket amounted to an unconstitutional search because the officer
continued to feel the pocket after determining that no weapon was present. Id. Therefore, the Court affirmed the
suppression of the cocaine evidence. Id. at 379.
[Headnote 2]
In the present case, Conners concedes that Deputy Moore lawfully stopped him and was justified in
conducting a Terry pat-down search. However, Conners argues that Deputy Moore's seizure of the
methamphetamine was the result of an unlawful search that continued after the officer had determined the object
was not a weapon. We agree.
In conducting the pat-down search, Deputy Moore felt something small in Conners' pocket with an open hand
and immediately ruled out that the object was a knife, gun, dirk, dagger, or other hidden instrument for the
assault of a police officer. Even so, Deputy Moore continued to palpate the object, changing his hand so as to
feel the object with his fingertips. Only then did the officer discover that the item was a vial of the size and shape
commonly used to contain contraband. The state's argument that the object was immediately apparent to
Moore is belied by the officer's own testimony. Deputy Moore admitted on direct examination that he changed
his grip only after ruling out the object was a weapon. These facts fall squarely within the definition of a search
that oversteps the bounds of Terry. The officer exceeded the scope of Terry by continuing to feel the object in
Conners' pocket, a pocket which the officer already knew contained no weapon."
__________

3
The plain-view doctrine holds that if police are lawfully in a position from which they view an object, if
its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object,
they may seize it without a warrant. Dickerson, 508 U.S. at 375 (citing Horton v. California, 496 U.S. 128,
136-37 (1990); Texas v. Brown, 460 U.S. 730, 739 (1983)). However, if the incriminating character of the item
is not immediately apparent, the officer may not seize it. Id.
weapon. Dickerson, 508 U.S. at 378. The subsequent seizure of the vial was, therefore, the result of an
unconstitutional search because Deputy Moore lacked probable cause to extract the item from Conners' pocket.
See id. Accordingly, we affirm the district court's order suppressing the methamphetamine evidence.
____________
116 Nev. 188, 188 (2000) Sheriff v. Marcus
SHERIFF, WASHOE COUNTY, Appellant, v. RICHARD ALAN MARCUS, Respondent.
No. 32958
February 23, 2000 995 P.2d 1016
This is an appeal from an order of the district court granting respondent's pretrial petition for a writ of habeas
corpus and dismissing the complaint against respondent. Second Judicial District Court, Washoe County;
Deborah A. Agosti, Judge.
Defendant charged with misdemeanor driving under the influence filed a pretrial petition for a writ of habeas
corpus. The district court granted the petition and dismissed the complaint. State appealed. The supreme court
held that: (1) statute granting prosecutors one chance to dismiss a misdemeanor complaint and later refile
without prejudice preempted any common law requirement that the prosecution show due diligence and good
faith before dismissing criminal charges, and (2) the statute does not violate the Equal Protection Clause.
Reversed.
Richard A. Gammick, District Attorney, and Terrence P. McCarthy, Deputy District Attorney, Washoe
County, for Appellant.
Martin H. Wiener, Reno, for Respondent.
1. Criminal Law.
Statute granting prosecutors one chance to dismiss a misdemeanor complaint and later refile without prejudice preempted any
common law requirement that the prosecution show due diligence and good faith before dismissing criminal charges. NRS 174.085(5).
2. Criminal Law.
Prosecutors' statutorily conferred power to dismiss a misdemeanor complaint and later refile without prejudice may not be used to
violate any constitutional right guaranteed to the defendant. NRS 174.085(5).
Statute granting prosecutors one chance to dismiss a misdemeanor complaint and later refile without prejudice does not violate the
Equal Protection Clause by impermissibly discriminating against the class of misdemeanor defendants with regard to a fundamental
trial right. The statute is rationally related to the legitimate government interest of giving prosecutors a
qualified right to dismiss and refile charges so that evidence may be more fully developed before trial and
the burdensome grand jury process may be avoided before reinstatement of charges.
statute is rationally related to the legitimate government interest of giving prosecutors a qualified right to dismiss and refile charges so
that evidence may be more fully developed before trial and the burdensome grand jury process may be avoided before reinstatement of
charges. U.S. Const. amend. 14, 1; NRS 174.085(5).
Misdemeanor defendants do not constitute a suspect class warranting a stricter standard of review for purposes of equal protection
analysis. U.S. Const. amend. 14, 1.
Right to have a complaint dismissed by the prosecutor only upon a showing to the court of good cause is not one that is
fundamental for equal protection purposes. U.S. Const. amend. 14, 1.
Before Rose, C. J., Young and Leavitt, JJ.
OPINION
Per Curiam:
SUMMARY
This is a case concerning recent legislation granting prosecutors the ability to once dismiss without
prejudice a misdemeanor complaint against a defendant before trial. Based on our review of the legislation
in light of our case law, which requires a showing of good cause before a prosecutor may seek a continuance,
we conclude that the legislation is clear and unambiguous on its face and allows prosecutors, within
constitutional limitations, to make such a dismissal without consent of the court.
STATEMENT OF FACTS
In October 1997, Richard A. Marcus (Marcus) was arrested and charged with misdemeanor driving
under the influence. After Marcus entered a not guilty plea at his arraignment hearing, the Sparks Justice
Court set the case for trial.
Prior to trial, however, the State filed a motion for continuance supported by an affidavit from the district
attorney as required by NRS 174.515 and Hill v. Sheriff, 85 Nev. 234, 452 P.2d 918 (1969). In this affidavit,
the district attorney swore, in relevant part, that the arresting officer who was the sole witness to Marcus's
arrest was unavailable because of mandatory self-defense training. Further, the affidavit stated that the
request for continuance was made in good faith and not for the purposes of delay.
In response, Marcus filed an opposition to the motion for continuance. Therein, Marcus argued that the
State failed to show good cause for the trial continuance because it had failed to demonstrate what
diligence had been used to procure the witness's attendance
demonstrate what diligence had been used to procure the witness's attendancean affidavit element required by
Hill.
On the previously scheduled trial date, the justice of the peace heard oral argument on the motion for
continuance. In this hearing, the State reiterated the fact that the arresting officer was unavailable due to his
mandatory self-defense training and that, as a result, the State was obviously . . . not ready to proceed to trial.
With regard to the sufficiency of the affidavit attached to the motion for continuance, the State noted that its
affidavit did not appear to adequately evidence the necessary diligence or effort to obtain the missing witness.
Therefore, rather than seeking a continuance supported by the possibly defective affidavit, the State invoked the
statute at issue, NRS 174.085(5), and successfully moved that the complaint be dismissed without prejudice.
In early February of 1998, the State refiled the same charges against Marcus in Sparks Justice Court by way
of criminal complaint and served him with a summons. Thereafter, Marcus moved to dismiss the refiled case,
arguing that the justice court had had no authority to dismiss the original proceeding without prejudice.
In an order issued to resolve the matter, the justice court concluded that the statute in question, NRS
174.085(5), clearly gave the State two bites at the apple, thereby allowing the prosecutor to once dismiss a
misdemeanor charge before trial without prejudice. Further, the justice of the peace indicated that a subpoena
had been issued for the arresting officer's attendance at trial, but that the officer had earlier informed the district
attorney of his prior commitment. Therefore, the justice of the peace concluded that, even though the district
attorney decided to rely on NRS 174.085(5) for dismissal, the district attorney may have been able to show the
requisite due diligence at the first hearing.
One day before the rescheduled trial date, Marcus filed a petition for writ of habeas corpus in district court.
In that petition, Marcus argued that Nevada common law has established a be prepared or lose rule that cannot
be and is not modified by revised NRS 174.085. At a brief hearing on the matter, the district court granted the
writ, concluding that the statute did not excuse the State's obligation to act in good faith and that the State had no
right to dismiss and refile if it could not get a proper motion for continuance.
The State now appeals the district court's granting of Marcus's writ.
DISCUSSION
[Headnote 1]
The State contends that the district court erred in granting Marcus's writ of habeas corpus because the
legislature amended NRS 174.0S5{5) in order to grant Nevada prosecutors one chance to
dismiss a misdemeanor complaint and later refile without prejudice.
NRS 174.085(5) in order to grant Nevada prosecutors one chance to dismiss a misdemeanor complaint and later
refile without prejudice. Further, the State argues that because of the legislative power to enact and modify
criminal procedure, any common law requirement that the prosecution show due diligence and good faith before
dismissing criminal charges is preempted. We agree.
Before discussing revised NRS 174.085(5) and its effect on prosecutors, we will briefly review the case law
on which Marcus and the district court below rely. The common law rule requiring prosecutors to make a
showing of good cause before being granted a continuance by a justice court is grounded in this court's decision
in Hill where the good cause language of a different procedural statuteNRS 171.196(2)was interpreted.
1
85 Nev. 234, 452 P.2d 918 (1969). With respect to NRS 171.196(2), this court held that good cause can be
satisfied when the party seeking a continuance attaches an affidavit complying with DCR 14. Hill, 85 Nev. at
235-36, 452 P.2d at 919. However, in certain emergency situations, the prosecution could make an oral motion
for continuance supported by an oral affidavit, or could supplement deficiencies in supporting affidavits with
oral testimony. See Bustos v. Sheriff, 87 Nev. 622, 491 P.2d 1279 (1971); Jasper v. Sheriff, 88 Nev. 16, 492
P.2d 1305 (1972).
Then, in Maes v. Sheriff, a case in which the prosecutor sought to refile a complaint after an earlier
complaint had been dismissed because of a prosecutor's improper motion for continuance, we held that the new
proceeding was barred if the first was dismissed as a result of the willful failure of the prosecutor to comply
with important procedural rules. 86 Nev. 317, 319, 468 P.2d 332, 333 (1970). Later, this court expanded the
term willful to include not only intentional derelictions on the part of the prosecution, but also situations where
there had been a conscious indifference to rules of procedure affecting a defendant's rights. State v. Austin, 87
Nev. 81, 83, 482 P.2d 284, 285 (1971).
Finally, we have noted that the prosecution bears the burden of showing good cause before seeking a
continuance and of proving an excuse where it has caused the justice court's dismissal of an earlier complaint by
failing to make a proper motion for continuance. See McNair v. Sheriff, 89 Nev. 434, 438, 514 P.2d 1175, 1177
(1973).
In 1997, the Nevada State Legislature amended NRS 174.085(5) to its current form, which states in relevant
part:
The prosecuting attorney in a case that he has initiated, may voluntarily dismiss a complaint:
__________

1
NRS 171.196(2) requires a magistrate to hear evidence of a charge within 15 days of arrest unless time is
extended for good cause.
(a) Before a preliminary hearing if the crime with which the defendant is charged is a felony or gross
misdemeanor; or
(b) Before trial if the crime with which the defendant is charged is a misdemeanor, without prejudice
to the right to file another complaint, unless the State of Nevada has previously filed a complaint against
the defendant which was dismissed at the request of the prosecuting attorney. After the dismissal, the
court shall order the defendant released from custody or, if he is released on bail, exonerate the obligors
and release any bail.
When reviewing a lower court's construction of a statute, this court has held that the question is one of law,
and therefore independent appellate review, rather than a more deferential standard, is appropriate. Tighe v. Las
Vegas Metro. Police Dep't, 110 Nev. 632, 634-35, 877 P.2d 1032, 1034 (1994). Accordingly, the district court's
holding is to be reviewed de novo. See also SIIS v. Snyder, 109 Nev. 1223, 1227, 865 P.2d 1168, 1170 (1993).
When construing the meaning and effect of a statute, this court has consistently held that [w]here the
language of a statute is plain and unambiguous, and its meaning clear and unmistakable, there is no room for
construction, and the courts are not permitted to search for its meaning beyond the statute itself. Erwin v. State
of Nevada, 111 Nev. 1535, 1538-39, 908 P.2d 1367, 1369 (1995) (quoting Charlie Brown Constr. Co. v.
Boulder City, 106 Nev. 497, 503, 797 P.2d 946, 949 (1990)). Additionally, we have held that the legislature
clearly has the power to regulate procedure in criminal cases. Colwell v. State, 112 Nev. 807, 813, 919 P.2d
403, 407 (1996). Finally, this court has held that the legislature may preempt common law where such
preemption is clear from the statute. Holliday v. McMullen, 104 Nev. 294, 296, 756 P.2d 1179, 1180 (1988).
[Headnote 2]
After reviewing NRS 174.085(5), we conclude that the statute clearly and unambiguously authorizes a
prosecutor to once dismiss without prejudice a misdemeanor complaint before trial without a showing of good
cause. The absence of any good cause requirement is apparent from a comparison of the current language with
the pre-amendment language. Before 1997, NRS 174.085(5) required that good cause be shown before a
prosecutor could voluntarily dismiss an indictment, information, or complaint after the defendant had been
arrested or incarcerated. 1997 Nev. Stat., ch. 504, 1, at 2392. In contrast, revised NRS 174.085(5) removes
any good cause prerequisite for a prosecutor dismissing a complaint before a misdemeanor trial and further
requires the immediate release of the defendant from custody and the exoneration of any
bail obligation.
requires the immediate release of the defendant from custody and the exoneration of any bail obligation.
2
With
respect to a prosecutor dismissing an indictment or information after the arrest or incarceration of the defendant,
however, revised NRS 174.085(7) retains the good cause requirement. Accordingly, we conclude that the
legislature's amendment containing no requirement that the prosecutor show good cause before once dismissing
a misdemeanor complaint must be given effect and that the requirements announced in the Hill line of cases do
not apply to the one dismissal allowed under NRS 174.085(5). However, we note that this power may not be
used to violate any constitutional right guaranteed to the defendant.
[Headnote 3]
Our next concern is the general constitutionality of NRS 174.085(5), which Marcus challenges by invoking
an equal protection clause argument. Based on our review of the parties' arguments, the common law
underpinnings of NRS 174.085(5), and the law in other jurisdictions, we conclude that the statute is
constitutional.
3

__________

2
Although not necessary to our decision, we note that the legislative intent of amended NRS 174.085
supports our holding. As stated by the drafters, the general purpose of the legislation was to make it easier to
dismiss and refile felony or gross misdemeanor complaints before preliminary hearings and misdemeanor
complaints before trial without first having to go through the burdensome grand jury process. See Minutes of the
Senate Committee on Judiciary at 5, 69th Leg. (Nev., June 30, 1997). Further, the drafters noted that many
prosecutors in the state do not have the benefit of a grand jury available to them on a regular basis. See id.
Finally, during the drafting stages of the bill, there was concern voiced by the public defender that the legislation
protected unprepared prosecutors and affected Nevada case law regarding a prosecutor's preparedness at trial.
See Minutes of the Assembly Committee on Judiciary at 5, 69th Leg. (Nev., April 7, 1997). However, after
several amendments and negotiations, the public defender offices of both Washoe and Clark counties appeared
to approve of the statute's current wording, apparently satisfied with the protections contained therein. See
Minutes of the Assembly Committee on Judiciary at 13, 69th Leg. (Nev., June 20, 1997).

3
Although not raised by Marcus, we recognize the validity of NRS 174.085 with respect to other
constitutional concerns. First, although the right to a speedy trial appears to be the most obviously impacted by
the legislation, other provisions in NRS 174.085 resolve any concern. Specifically, NRS 174.085(5) provides for
the defendant's immediate release from confinement or from any bail obligation upon a dismissal of a complaint,
and NRS 174.085(6) requires that any subsequent complaint be brought by way of summonsnot arrest. Thus,
because the Supreme Court of the United States has stated that the speedy trial clause does not apply when a
defendant is neither incarcerated nor subject to a pending indictment, complaint, or other substantial restriction
on their liberty, the right is not violated by the legislation's dismissal procedure. See United States v. Loud
Hawk, 474 U.S. 302, 312 (1986). Additionally, the legislation requires any subsequent proceeding to be
[Headnotes 4, 5]
Marcus contends that NRS 174.085(5) violates the Equal Protection Clause of the Constitution by
impermissibly discriminating against the class of misdemeanor defendants with regard to a fundamental trial
right. See U.S. Const. amend. XIV, 1. We first conclude that misdemeanor defendants do not constitute a
suspect class warranting a stricter standard of review. See Dohany v. Rogers, 281 U.S. 362, 369 (1930) (The
Legislature may classify and adopt one type of procedure for one class [of litigants] and a different type for
another.); see, e.g., Blanton v. North Las Vegas Mun. Ct., 103 Nev. 623, 748 P.2d 494 (1987) (no right to jury
trial for misdemeanor driving-under-the-influence defendants). Further, we conclude that the right to have a
complaint dismissed by the prosecutor only upon a showing to the court of good cause is not one that is
fundamental for equal protection purposes. See 16B Am. Jur. 2d Constitutional Law 816 (1998) (only those
liberties explicitly or implicitly guaranteed by [the] Federal Constitution are fundamental for purposes of equal
protection analysis). Thus, applying rational basis review to the legislation, we conclude that NRS 174.085(5) is
rationally related to the legitimate government interest of giving prosecutors a qualified right to dismiss and
refile charges so that evidence may be more fully developed before trial and the burdensome grand jury process
may be avoided before reinstatement of charges. See Minutes of the Senate Committee on Judiciary at 5, 69th
Leg. (Nev., June 30, 1997) (stating legislative purpose). Accordingly, NRS 174.085(5) does not violate any
protections guaranteed by the Equal Protection Clause. See U.S. Const. amend. XIV, 1.
More generally, we recognize that the ability of a prosecutor to dismiss and reinstate a charge, known as a
nolle prosequi order at common law, is one that has been widely accepted as constitutional. See, e.g., Basing v.
Cady, 208 U.S. 386 (1908) (recognizing that no right secured . . . by the Constitution or laws of the United
States is violated by a prosecutor's dismissal of charges and release of the defendant from custody followed by
a later reinstatement of those charges). Moreover, while many jurisdictions have instituted statutory schemes
requiring some consent of or showing to the court before prosecutors can effect a pretrial dismissal without
prejudice, other jurisdictions continue to grant prosecutors the absolute discretion to dismiss and refile. See
generally 21 Am. Jur. 2d Criminal Law 770-84 (1998) (citing Missouri and Indiana as such
jurisdictions);
__________
heard by the original judge, protecting the defendant from any forum-shopping concerns. Finally, the legislation
does not raise any double jeopardy concern with respect to a subsequent charge because jeopardy in Nevada
does not attach prior to the taking of testimony at trial. See State v. Blackwell, 65 Nev. 405, 415, 200 P.2d 698,
698 (1948).
Missouri and Indiana as such jurisdictions); 3 Wharton's Criminal Procedure, 445, pp. 926-33 (13th ed. 1991)
(citing Florida, Louisiana, Maryland, and Vermont as such jurisdictions). Thus, the continuing vitality of the
nolle prosequi power in other states further evidences the constitutionality of the practice.
Accordingly, we conclude that NRS 174.085(5) and the power it vests with prosecutors is constitutional.
Further, although we recognize that under a different set of facts the statute may be applied unconstitutionally,
the prosecutor here properly moved for dismissal under NRS 174.085(5), and thus the district court's granting of
Marcus's writ of habeas corpus must be reversed.
CONCLUSION
Based on the foregoing analysis, we conclude that the prosecutor had the power to once dismiss Marcus's
misdemeanor charge without prejudice prior to trial, and thus we reverse the district court order granting
Marcus's writ of habeas corpus and dismissing the complaint against Marcus.
____________
116 Nev. 195, 195 (2000) Desimone v. State
CORKY DESIMONE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24971
February 23, 2000 996 P.2d 405
Appeal from a judgment of conviction of one count of possession of a trafficking quantity of a controlled
substance. Second Judicial District Court, Washoe County; Mills Lane, Judge.
Proceedings on remand from the Supreme Court of the United States.
Defendant was convicted in the district court of one count of possession of a trafficking quantity of a
controlled substance, and he appealed, claiming that conviction violated Double Jeopardy Clause due to prior
civil assessment of taxes and penalties for possession of a controlled substance. The supreme court, 111 Nev.
1221, 904 P.2d 1 (1995), reversed. The state petitioned for writ of certiorari, and the United States Supreme
Court, 518 U.S. 1030 (1996), vacated and remanded with instruction. On remand, the supreme court held that
civil taxes and penalties previously assessed against defendant and reduced to judgment prior to entry of
criminal conviction based upon same conduct was sufficiently punitive to transform civil sanction into criminal
penalty, and thus subsequent criminal conviction violated double jeopardy.
Judgment of conviction reversed and vacated.
Michael R. Specchio, Public Defender, and John Reese Petty, Deputy Public Defender, Washoe County, for
Appellant.
Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Double Jeopardy.
In assessing the double jeopardy implications of a civil sanction, the first inquiry is whether the legislature intended the provision
in question to be civil or criminal in nature, and even in those cases where the legislature has indicated an intention to establish a civil
mechanism, the court must further inquire into whether the statutory scheme is so punitive, either in purpose or effect, as to transform
what was clearly intended as a civil remedy into a criminal penalty. U.S. Const. amend. 5.
2. Double Jeopardy.
Tax on Controlled Substances Act (CSA), which levies taxes and penalties on possession of controlled substances, was intended
by legislature to be civil in nature, for purposes of determining double jeopardy implications of statute. U.S. Const. amend. 5; NRS
372A.050.
3. Double Jeopardy.
Civil taxes and penalties assessed against defendant under Tax on Controlled Substances Act (CSA) and reduced to judgment prior
to entry of criminal conviction for possession of a trafficking quantity of a controlled substance based upon same conduct was
sufficiently punitive to transform civil sanction into criminal penalty, and thus subsequent criminal conviction violated double
jeopardy, even though CSA made provisions for anonymous prepayment of drug tax by dealers in controlled substances and did not
condition tax upon arrest for controlled substance violation. U.S. Const. amend. 5; NRS 372A.050.
Before Rose, C. J., Young, Maupin and Shearing, JJ.
1

OPINION
Per Curiam:
In Desimone v. State, 111 Nev. 1221, 904 P.2d 1 (1995) (Desimone I), this court held that appellant
Corky Desimone's criminal conviction of one count of possession of a trafficking quantity of a controlled
substance constituted successive punishment in violation of the Double Jeopardy Clause of the United
States Constitution. See U.S. Const. amend. V. The United States Supreme Court thereafter vacated our
decision and remanded the matter to this court with instructions to reconsider in light of United States
v. Ursery,
__________

1
This matter was submitted for decision prior to the expansion of the court from five to seven justices
on January 4, 1999. Only those justices remaining on the court at the time this matter was submitted for
decision participated in this decision.
United States v. Ursery, 518 U.S. 267 (1996). See Nevada v. Desimone, 518 U.S. 1030 (1996).
Having reconsidered our prior decision in light of Ursery, as well as the Supreme Court's subsequent holding
in Hudson v. United States, 522 U.S. 93 (1997), we again conclude that Desimone's criminal conviction violates
the Double Jeopardy Clause of the United States Constitution and must be vacated.
FACTS
Desimone was arrested and charged with possession and sale of methamphetamine after he provided three
ounces of the substance to undercover police officers in exchange for what he believed to be stolen property.
Following his arrest, the Nevada Department of Taxation initiated proceedings to collect $166,000 in unpaid
taxes and penalties pursuant to NRS chapter 372A, Nevada's Tax on Controlled Substances Act (CSA). On May
20, 1993, the district court entered a civil judgment in the tax proceeding in favor of the Department and
against Desimone in the amount of $166,000. Desimone I, 111 Nev. at 1223-24, 904 P.2d at 2-3.
Thereafter, on September 22, 1993, the district court convicted Desimone in the separate criminal proceeding
of one count of possession of a trafficking quantity of a controlled substance. The district court sentenced him to
serve a term of fifteen years in the Nevada State Prison and to pay a fine of $100,000. Id. On appeal, a majority
of this court concluded that the taxes and penalties assessed under the CSA constituted punishment for double
jeopardy purposes. Desimone I, 111 Nev. at 1228, 904 P.2d at 6. Because the tax against Desimone had been
reduced to judgment before the judgment of conviction was entered, this court held that his subsequent criminal
conviction constituted impermissible successive punishment under the Double Jeopardy Clause. Desimone I, 111
Nev. at 1230, 904 P.2d at 6-7.
As noted, the United States Supreme Court subsequently vacated this court's decision and remanded the
matter for reconsideration in light of United States v. Ursery, 518 U.S. 267 (1996). See Nevada v. Desimone,
518 U.S. 1030 (1996).
DISCUSSION
Relevant Supreme Court decisions
This court's decision in Desimone I primarily adhered to the analytical approach delineated by the United
States Supreme Court in Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767 (1994). Kurth Ranch
addressed whether a Montana tax assessed on marijuana was invalid as successive punishment under the Double
Jeopardy Clause where the taxpayers had already been criminally convicted of owning the marijuana
that was taxed.
criminally convicted of owning the marijuana that was taxed. The Court held that the Montana tax proceeding
was the functional equivalent of a successive criminal prosecution that placed the [taxpayers] in jeopardy a
second time for the same offense.' Kurth Ranch, 511 U.S. at 784.
After this court decided Desimone I, the Supreme Court issued two decisions significantly clarifying the
proper analysis for determining whether a civil forfeiture or penalty constitutes punishment for double jeopardy
purposes. See United States v. Ursery, 518 U.S. 267 (1996) (addressing civil in rem forfeiture proceedings);
Hudson v. United States, 522 U.S. 93 (1997) (addressing administrative proceedings involving imposition of
monetary penalties and occupational debarment).
In Hudson, the Court largely disavowed the double jeopardy analysis previously announced in United States
v. Halper, 490 U.S. 435 (1989).
2
Instead, Hudson articulated a two-part test, previously outlined in Ursery, for
determining whether a particular punishment is criminal or civil. This court has since adopted and applied the
Ursery and Hudson analysis in examining double jeopardy concerns in cases involving civil forfeitures and
administrative penalties. See Levingston v. Washoe County, 114 Nev. 306, 956 P.2d 84 (1998) (applying Ursery
analysis in forfeiture context); State v. Lomas, 114 Nev. 313, 955 P.2d 678 (1998) (applying Hudson analysis in
civil driver's license revocation proceedings).
[Headnote 1]
As Hudson instructs, in assessing the double jeopardy implications of a civil sanction, we look first to
whether the legislature intended the provision in question to be civil or criminal in nature. Hudson, 522 U.S. at
99 (first question is whether the legislature indicated either expressly or impliedly a preference for one label
or the other' ) (quoting United States v. Ward, 448 U.S. 242, 248 (1980)). Second, even in those cases where
the legislature has indicated an intention to establish a civil mechanism, this court must inquire further into
whether the statutory scheme is so punitive either in purpose or effect, as to transfor[m] what was clearly
intended as a civil remedy into a criminal penalty.' Hudson, 522 U.S. at 99 (quoting Rex Trailer Co. v. United
States, 350 U.S. 148, 154 (1956)); see also Ursery, 518 U.S. at 288 (court must first look to whether Congress
intended the provision to be civil or criminal and then to whether the proceedings are so punitive in fact as to
persuade the court that they may not legitimately be viewed as civil in nature despite Congress' intent)
__________

2
Although this court cited Halper in Desimone I, as noted above, our prior decision was guided primarily by
the analysis in Kurth Ranch.
Congress' intent) (citing United States v. One Assortment of 89 Firearms, 465 U.S. 354, 366 (1984)).
Hudson explains:
In making this latter determination, the factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144,
168-69 (1963), provide useful guideposts, including: (1) [w]hether the sanction involves an affirmative
disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it
comes into play only on a finding of scienter; (4) whether its operation will promote the traditional
aims of punishmentretribution and deterrence; (5) whether the behavior to which it applies is already
a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for
it; and (7) whether it appears excessive in relation to the alternative purpose assigned.
Id. at 99-100. Hudson emphasizes that these Kennedy factors must be considered in relation to the statute on
its face, and only the clearest proof will suffice to override legislative intent and transform what has been
denominated a civil remedy into a criminal penalty. Id. (internal quotation marks and citations omitted).
Neither Ursery nor Hudson specifically call into question the holding or double jeopardy analysis applied in
Kurth Ranch in the tax context. See, e.g., Commissioner of Revenue v. Mullins, 702 N.E.2d 1, 4 (Mass. 1998)
(nothing in the Court's Hudson decision indicates that the mode of examination employed in Kurth Ranch is no
longer appropriate in the tax context). In fact, both opinions appear to acknowledge that the Kurth Ranch
analysis encompasses at least to some extent the two-part test of Hudson and Ursery. Id. Nonetheless, Ursery
and Hudson both highlight the key, determinative factors that persuaded the Court in Kurth Ranch to conclude
that the Montana tax at issue implicated double jeopardy concerns.
For example, in summarizing the Kurth Ranch analysis, the Ursery Court explained:
We first established that the fact that Montana had labeled the civil sanction a tax did not end our
analysis. We then turned to consider whether the tax was so punitive as to constitute a punishment subject
to the Double Jeopardy Clause. Several differences between the marijuana tax imposed by Montana and
the typical revenue-raising tax were readily apparent. The Montana tax was unique in that it was
conditioned on the commission of a crime and was imposed only after the taxpayer had been arrested:
Thus, only a person charged with a criminal offense was subject to the tax.
charged with a criminal offense was subject to the tax. We also noted that the taxpayer did not own or
possess the taxed marijuana at the time that the tax was imposed. From these differences, we determined
that the tax was motivated by a penal and prohibitory intent rather than the gathering of revenue.
Concluding that the Montana tax proceeding was the functional equivalent of a successive criminal
prosecution, we affirmed the Court of Appeals' judgment barring the tax.
Ursery, 518 U.S. at 282 (quoting Kurth Ranch, 511 U.S. at 781, 784) (internal citations omitted). Ursery further
explained:
[Kurth Ranch] expressly disclaimed reliance upon Halper, finding that its case-specific approach was
impossible to apply outside the context of a fixed civil-penalty provision. Reviewing the Montana
marijuana tax, we held that because tax statutes serve a purpose quite different from civil penalties, . . .
Halper's method of determining whether the exaction was remedial or punitive simply does not work in
the case of a tax statute.
Ursery, 518 U.S. at 285-86 (quoting Kurth Ranch, 511 U.S. at 784).
3

The Court's subsequent decision in Hudson also distinguished Kurth Ranch from Halper, emphasizing with
approval Kurth Ranch's recognition that all civil penalties have some deterrent effect, and that the presence of a
deterrent purpose or effect is not dispositive of the double jeopardy question. Hudson, 522 U.S. at 102 n.6
(quoting Kurth Ranch, 511 U.S. at 781).
4
The Court also noted that unlike the Halper decision,
__________

3
This court's decision in Desimone I also acknowledged this instruction from Kurth Ranch that the Halper
approach could not be applied in the case of a tax provision. See Desimone I, 111 Nev. at 1231, 904 P.2d at 7
(quoting Kurth Ranch, 511 U.S. at 784).

4
In Desimone I, this court, in dictum, along with many other state and federal courts, broadly construed
Halper as holding that a civil penalty would be considered punishment for double jeopardy purposes whenever
that penalty did not solely serve a remedial purpose, but rather [could] only be explained as also serving either
retributive or deterrent purposes.' Desimone I, 111 Nev. at 1225, 904 P.2d at 3 (quoting Halper, 490 U.S. at
448). As we have previously noted, however, Halper announced a rule for the rare case . . . where a
fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly
disproportionate to the damages he has caused. See Lomas, 114 Nev. at 316 n.2, 955 P.2d at 680 n.2 (quoting
Halper, 490 U.S. at 449). In any event, acknowledging the confusion created by Halper, the Court concluded in
Hudson that Halper's test for determining whether a particular sanction is punitive,' and thus subject to the
strictures of the Double Jeopardy Clause, has proved unworkable. Hudson, 522 U.S. at 102. Specifically,
Hudson explained, [i]f a sanction must be solely' remedial (i.e., entirely nondeterent) to avoid implicating the
Double Jeopardy Clause, then no civil penalties are beyond the scope of the Clause. Id. at 102.
Court also noted that unlike the Halper decision, Kurth Ranch applied a Kennedy-like test, before concluding
that Montana's dangerous drug tax was the functional equivalent of a successive criminal prosecution.'
Hudson, 522 U.S. at 102 n.6 (internal citations omitted).
Finally, Justice Breyer's concurrence in Hudson further identified and defined factors considered in Kurth
Ranch in assessing the double jeopardy implications of the Montana tax. See Hudson, 522 U.S. at 115 (Breyer,
J., concurring). Justice Breyer explained, Kurth Ranch properly tracked the following nonexclusive list of
factors set forth in Kennedy.
[The Montana] tax was remarkably high; it had an obvious deterrent purpose; it was conditioned on
the commission of a crime; it was exacted only after the taxpayer ha[d] been arrested for the precise
conduct that gives rise to the tax obligation; its alternative function of raising revenue could be equally
well served by increasing the fine imposed on the activity; and it departed radically from normal revenue
laws by taxing contraband goods perhaps destroyed before the tax was imposed.
Hudson, 522 U.S. at 115 (Breyer, J., concurring) (quoting Kurth Ranch, 511 U.S. at 781-84).
With the above-stated principles in mind, we now reconsider whether Desimone's criminal conviction
constituted impermissible successive punishment under the Double Jeopardy Clause. In so doing, we first assess
whether the legislature intended the CSA, either expressly or impliedly, to be civil or criminal in nature. Second,
even assuming that the legislature intended the provision to be civil in nature, we next consider whether the
$166,000 tax judgment imposed in this case pursuant to the CSA is so punitive in purpose or effect as to
constitute punishment subject to the Double Jeopardy Clause. In making this latter determination, we have paid
due regard to the Kennedy-like factors identified above in Kurth Ranch, Ursery, and Hudson.
Legislative intent
[Headnote 2]
As Hudson and Ursery instruct, any assessment of whether an exaction is civil or criminal in character should
begin with an analysis of legislative intent. In the instant case, several factors are indicative of the legislature's
intent to enact a civil provision. First, the CSA is quite clearly labeled a tax. See NRS chapter 372A (entitled:
Tax on Controlled Substances). Second, the penalties assessed for failure to register and pay the tax are
specifically denominated as civil and must be collected as part of the tax."
the tax. See NRS 372A.070(4). Third, NRS 372A.050 confers authority upon the Nevada Department of
Taxation to adopt all necessary regulations to carry out the provisions of this chapter. As we have previously
observed, the legislature's decision to confer such authority on an administrative agency is prima facie evidence
that the legislature intended to provide for a civil sanction.
5
See Lomas, 114 Nev. at 317, 955 P.2d at 680-81
(citing Hudson, 522 U.S. at 103). Accordingly, for the purposes of this analysis, we discern from the face of the
CSA itself a legislative preference to label the CSA as essentially civil in nature.
This alone, however, does not immunize the provision from double jeopardy scrutiny. See Lynn v. West, 134
F.3d 582, 589 n.5 (4th Cir.) (Kurth Ranch dictates that the tax be analyzed according to its substantive effect,
not its formal label), cert. denied, 525 U.S. 813 (1998). Therefore, we now turn to consider whether the
characteristics of the statutory scheme are so punitive in effect as to subject the provision to the constraints of
the Double Jeopardy Clause.
Punitive characteristics and effects
[Headnote 3]
We note initially that the Nevada CSA is exclusively applicable only to illegal activities, and the behavior
to which it applies is already a crime. See Hudson, 522 U.S. at 99 (quoting Kennedy, 372 U.S. at 168). For
example, the preamble to the CSA describes the provision as:
AN ACT relating to controlled substances; requiring illegal dealers in controlled substances to register
with the department of taxation; imposing a tax on illegally sold controlled substances; providing for the
confidentiality of certain information submitted by dealers; providing a penalty; and providing other
matters properly relating thereto.
See 1987 Nev. Stat., ch. 717, at 1737. Moreover, any person lawfully in possession of a controlled substance is
specifically exempted from the tax. See NRS 372A.060(1). Thus, as in Kurth Ranch, Nevada's tax in substantive
and practical effect is conditioned on the commission of a crime. Ursery, 518 U.S. at 282. As the Supreme
Court has observed, this is significant of penal and prohibitory intent. Kurth Ranch, 511 U.S. at 781 (quoting
United States v. Constantine, 296 U.S. 287, 295 (1935)).
Unlike the Montana tax at issue in Kurth Ranch, however, the Nevada tax is due and payable prior
to or upon the occurrence of the taxable activity, rather than upon an arrest for that
activity.
__________

5
Notably, NRS 372A.070(5) also authorizes the district attorney of any county in which a dealer resides to
institute and conduct the prosecution of any action for failure to register or pay the tax. See also NRS
372A.070(1) and (4).
Nevada tax is due and payable prior to or upon the occurrence of the taxable activity, rather than upon an arrest
for that activity. Under Nevada's CSA, a dealer must purchase and affix revenue stamps to all illegal drugs the
dealer sells. NAC 372A.020. Thus, theoretically at least, the Nevada tax is not necessarily exacted only after the
taxpayer has been arrested for the conduct giving rise to the tax obligation. Rather, the tax is broadly applicable
to any person who unlawfully sells, offers to sell, or possesses with the intent to sell a controlled substance. See
NRS 372A.070(1).
Further, Nevada's CSA provides for anonymous payment and specifically precludes use of tax information in
criminal prosecutions. Illegal drug dealers are not required to give a name, address, social security number or
other identifying information, see NRS 372.070(3); information obtained from a dealer who registers or pays the
tax is confidential, see NRS 372A.080(1); no criminal prosecution may be initiated on the basis of such
information, see NRS 372A.080(2); and no such information is admissible in a criminal prosecution unless the
information was independently or inevitably would have been discovered, see NRS 372A.080(3). It is these
features which primarily distinguish our state's statutory scheme from the Montana scheme at issue in Kurth
Ranch.
We recognize that other courts have distinguished Kurth Ranch and have rejected double jeopardy
challenges to statutory schemes similar to Nevada's on the basis of these distinctions. See, e.g., Com. v. Bird,
979 S.W.2d 915 (Ky. 1998), cert. denied, 119 S. Ct. 2019 (1999); Covelli v. Commissioner of Revenue Servs.,
668 A.2d 699 (Conn. 1995), vacated and remanded, 518 U.S. 1031, aff'd after remand, 683 A.2d 737 (Conn.
1996), cert. denied, 520 U.S. 1174 (1997); Milner v. State, 658 So. 2d 500 (Ala. Civ. App. 1994); State v.
Lange, 531 N.W.2d 108 (Iowa 1995); State v. Gulledge, 896 P.2d 378 (Kan. 1995); McMullin v. South Carolina
Dept. of Rev. & Taxation, 469 S.E.2d 600 (S.C. 1996). We conclude, however, that such constitutional
distinctions based on the pretense that dealers may prepay taxes are unpersuasive and elevate form over
substance and practicality.
As a practical matter, it will be the rare circumstance indeed where a dealer in illegal drugs will register and
tender prior payment of taxes due under Nevada's CSA, particularly where, as here, the high rate of taxation
appears even more remarkable than that assessed against the Kurth Ranch taxpayers.
6
As Chief Justice
Rehnquist noted in his dissent in Kurth Ranch:
__________

6
Nevada's CSA requires an illegal dealer in controlled substances to register with the Nevada Department of
Taxation, pay an annual fee of $250, pay a tax of $100 for each gram of marijuana or portion thereof; $1,000 for
each gram of any other controlled substance or portion thereof; and $2,000 for each 50 dosage units or smaller
portion of controlled substances not sold by
Rehnquist noted in his dissent in Kurth Ranch: Because the activity sought to be taxed is illegal, individuals
cannot be expected to voluntarily identify themselves as subject to the tax. Kurth Ranch, 511 U.S. at 788 n.2
(Rehnquist, C. J., dissenting). We are not persuaded that these essentially illusory, anonymous payment
provisions constitute credible constitutional bases for distinguishing Nevada's CSA from the provision addressed
in Kurth Ranch.
Instead, we conclude that the similarities between Nevada's tax and the Kurth Ranch tax are more compelling
than the differences. We agree with those courts that expressly or implicitly recognize that, realistically,
imposition of a tax like Nevada's will follow only after a dealer is apprehended and subject to arrest and that
double jeopardy concerns are indeed implicated where such taxation is expressly limited to the unlawful drug
activity. See, e.g., Lynn v. West, 134 F.3d 582 (4th Cir.) (finding drug tax punitive although double jeopardy
question not at issue), cert. denied, 525 U.S. 813 (1998); Commissioner of Revenue v. Mullins, 702 N.E.2d 1
(Mass. 1998) (holding that revenue stamp tax on controlled substances is punishment for double jeopardy
purposes); Brunner v. Collection Div. of Tax Com'n, 945 P.2d 687 (Utah 1997) (same); Wilson v. Department
of Revenue, 662 N.E.2d 415 (Ill. 1996) (same); Bryant v. State, 660 N.E.2d 290 (Ind. 1995) (Indiana controlled
substance tax constitutes punishment for double jeopardy purposes), cert. denied, 519 U.S. 926 (1996); see also
People v. Maurello, 932 P.2d 851 (Colo. Ct. App. 1997) (addressing double jeopardy concerns of Colorado drug
tax that did not contain confidentiality or anonymity provisions and that did not prohibit use of drug information
in criminal prosecution). Thus, we conclude that, as in Kurth Ranch, Nevada's CSA hinges on the commission of
a crime and realistically, will normally be exacted only after the taxpayer is apprehended and subject to arrest for
the same conduct giving rise to the tax obligation.
We have assessed the remaining factors identified in Kurth Ranch, Ursery, and Hudson, and are persuaded
by the clearest proof that the tax assessed against Desimone was the functional equivalent of a criminal
prosecution. First, as noted above, the Nevada tax is at least as high as the tax at issue in Kurth Ranch.
__________
weight. See NRS 372A.070(1). Dealers who ignore the tax are subject to civil penalties of 100% of the tax. See
NRS 372A.070(4). Thus, realistically, the class of taxpayers will generally be liable for penalties amounting to
100% of the unpaid tax. In contrast, the Montana tax at issue in Kurth Ranch was either 10% of the assessed
market value of the drugs or a specified amount depending on the drug ($100 per ounce for marijuana). Kurth
Ranch, 511 U.S. at 780 n.17.
Second, it has an obvious deterrent purpose and clearly promote[s] the traditional aims of
punishment-retribution and deterrence.
7
Hudson, 522 U.S. at 99 (quoting Kennedy, 372 U.S. at 168). Third,
its alternative function of raising revenue could be equally well served by increasing the fine imposed on
illegal drug transactions. Id. at 115 (Breyer, J., concurring). Fourth, in light of the exceedingly high taxation rate
and the improbability that a taxpayer will possess the contraband goods when the tax and penalties are levied, we
conclude that the Nevada tax depart[s] radically from normal revenue laws.' Id.
We conclude that, taken as a whole, Nevada's tax in practice and effect is a concoction of the same
anomalies and unusual features that the Court found in Kurth Ranch to be too far removed in crucial
respects from a standard tax assessment to escape characterization as punishment for the purpose of double
jeopardy analysis. Kurth Ranch, 511 U.S. at 783.
CONCLUSION
We recognize the need for innovative and imaginative approaches in the battle against illegal drug usage,
and we emphasize that the State is not constitutionally prohibited from seeking a judgment pursuant to the
provisions of Nevada's CSA where there has been no prior criminal conviction for the conduct giving rise to the
tax obligation.
The reality is, however, that drug dealers operating outside the law will not register and prepay
these taxes.
__________

7
The legislative history of the CSA amply illustrates this point. As we previously noted in Desimone I:
[T]he sponsor of the bill giving rise to NRS chapter 372A introduced the legislation as serving two
purposes: first, to get the drug dealers where it really hurtsin the pocketbook, and second, to provide
a whole new avenue of deterrents and punishment for drug dealers outside of the fines, sentences and
courtroom procedures under current law.
See Desimone I, 111 Nev. at 1227-28, 904 P.2d at 5 (quoting Minutes of the Senate Taxation Committee, 64th
Sess. 1-8, Exhibit C (March 12, 1987) (Senator John M. Vergiels, Introductory Remarks for Senate Bill 144)
(emphasis added)). At the very least, this legislative history, coupled with the exceedingly high rate of taxation,
is clear evidence supporting a conclusion that the statute's primary function is to serve as an additional penalty.
See Kennedy, 372 U.S. at 169-70. Moreover, these factors come close to the objective manifestations of
legislative intent that, under Kennedy, indicate conclusively that the provisions in question can only be
interpreted as punitive. Id.; see also Stennett v. State, 941 S.W.2d 914, 916-17 (Tex. Crim. App. 1996) (where
satisfactory evidence showed that legislature intended controlled substance tax to serve as further punishment,
the court held that the tax was punishment subject to constraints of Double Jeopardy Clause), overruled on other
grounds by, Ex Parte Ward, 964 S.W.2d 617 (Tex. Crim. App.), cert. denied, 525 U.S. 823 (1998).
law will not register and prepay these taxes. We decline to engage in the pretense that the remote possibility they
might constitutes a constitutional basis for distinguishing Nevada's tax from the tax found to implicate double
jeopardy concerns in Kurth Ranch.
The tax imposed against Desimone by a final judgment pursuant to NRS chapter 372A is the functional
equivalent of a criminal prosecution. Where, as here, the tax has been reduced to judgment before a criminal
judgment of conviction is entered for engaging in the same unlawful conduct, the conviction violates the Double
Jeopardy Clause and cannot stand. See Desimone I, 111 Nev. at 1229-30, 904 P.2d at 6-7 (quoting and
discussing United States v. Sanchez-Escareno, 950 F.2d 193 (5th Cir. 1991), cert. denied, 506 U.S. 841 (1992)).
Accordingly, we reverse and vacate Desimone's criminal conviction.
____________
116 Nev. 206, 206 (2000) Paige v. State
CHRISTOPHER DOUGLAS PAIGE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 33446
February 24, 2000 995 P.2d 1020
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of offering, agreeing, or
arranging to sell or give away a controlled substance. Eighth Judicial District Court, Clark County; Donald M.
Mosley, Judge.
Following jury trial before the district court, defendant was convicted of offering to sell a controlled
substance. Defendant appealed. The supreme court held that conviction of offering to sell controlled substance
requires existence of actual controlled substance.
Reversed.
Morgan D. Harris, Public Defender, and Craig F. Jorgenson, Deputy Public Defender, Clark County, for
Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, Christopher J.
Laurent, Chief Deputy District Attorney, and Martin W. Hart, Deputy District Attorney, Clark County, for
Respondent.
1. Criminal Law.
Questions of law are subject to de novo review.
Conviction of offering to sell controlled substance requires existence of actual controlled substance. NRS 453.321.
116 Nev. 206, 207 (2000) Paige v. State
In absence of evidence that substance defendant sold to undercover officer as rock cocaine was actually a controlled substance as
opposed to an imitation, evidence was insufficient to sustain conviction of offering to sell controlled substance. NRS 453.321.
OPINION
Per Curiam:
On April 5, 1998, Las Vegas Metropolitan Police Department Detective John Turney (Turney) was
working undercover on narcotics-related crimes near Stewart and Thirteenth Streets. As Turney walked down
Stewart Street, Donald Monroe (Monroe) walked up to him. Turney told Monroe that he was looking to
buy two rocks of cocaine for $20.00. Monroe then told Turney to wait by a pay phone. Monroe walked away
from Turney and toward a vacant building.
In front of the vacant building, Monroe approached appellant Christopher Douglas Paige (Paige).
Monroe and Paige engaged in a brief conversation that Turney could not hear. The conversation took
approximately two minutes. After the conversation, Monroe then left the scene, and Paige walked toward
Turney.
Before Turney could speak, Paige said, Where's the money? Turney took out $20.00, and Paige then
took out what appeared to be rocks of cocaine. Turney and Paige exchanged the money and rocks of cocaine.
After Paige handed the rocks of cocaine to Turney, Turney asked Paige if they were good rocks. Paige
responded by saying, Yes, good coke. Turney and Paige then walked in separate directions.
When Turney returned to the undercover command post, the rocks of cocaine that Paige gave him were
tested. The test results were inconclusive as to cocaine and were made of an unknown substance.
1

Due to the undercover nature of the investigation, another officer briefly detained, interviewed, and then
released Paige. On April 8, 1998, after the undercover operation ended, Turney identified Paige and the
police arrested him.
Paige was tried and convicted of one count of offering, agreeing, or arranging to sell or give away a
controlled substance, a felony under NRS 453.321.
__________

1
At trial, Turney testified that based on his education, training, and experience, he believed that the rocks
were cocaine at the time of the transaction. Turney testified further that these types of turkey buys are
common in Las Vegas.
116 Nev. 206, 208 (2000) Paige v. State
felony under NRS 453.321. The district court sentenced Paige to serve twenty-eight to seventy-two months in
prison.
Paige argues that an essential element of the crime of offering to sell a controlled substance under NRS
453.321 requires the State to prove that he offered to sell an actual controlled substance. Because the substance
Paige sold to the undercover detective was not cocaine, he argues that the State failed to present sufficient
evidence to convict him under NRS 453.321. We agree.
[Headnote 1]
The construction of a statute is a question of law. Anthony Lee R., A Minor v. State, 113 Nev. 1406, 1414,
952 P.2d 1, 6 (1997). Questions of law are subject to de novo review. See Clark v. Lubritz, 113 Nev. 1089,
1093, 944 P.2d 861, 864 (1997). In interpreting statutes, [t]his court has long held that statutes should be given
their plain meaning. Alsenz v. Clark Co. School Dist., 109 Nev. 1062, 1065, 864 P.2d 285, 286 (1993).
[Headnote 2]
NRS 453.321
2
provides in relevant part:
1. [I]t is unlawful for a person to import, transport, manufacture, compound, sell, exchange, barter,
supply, prescribe, dispense, give away or administer a controlled or counterfeit substance or to offer or
attempt to do any such act.
The State asserts that Paige committed a crime when he offered to sell a controlled substance and that NRS
453.321 does not require that the substance actually be a controlled substance. Indeed, the State's interpretation
of NRS 453.321 is one that requires a controlled substance to be involved in every type of transaction described
in the statute except for offering to sell a controlled substance. For example, under the State's view of NRS
453.321, a defendant cannot be convicted of selling a controlled substance if the substance was not truly a
controlled substance. In contrast, the State argues that Paige can be convicted of offering to sell a controlled
substance even if the substance was not truly a controlled substance. The State cannot have it both ways. NRS
453.321 contains no language indicating that offering to sell does not also require the existence of a controlled
substance. We note that the State's theory of NRS 453.321 actually encourages, not discourages, an individual to
complete a drug sale.
__________

2
In 1999, the Nevada Legislature amended NRS 453.321. See 1999 Nev. Stat., ch. 517, 3, at 2637-38. The
version of NRS 453.321 cited above was in effect at the time of Paige's offense on April 5, 1998. Therefore, the
unamended statute applies to the case before us. Additionally, the 1999 amendments to NRS 453.321 do not
alter our analysis of the issues before us in the instant matter.
116 Nev. 206, 209 (2000) Paige v. State
Moreover, the State concedes we have previously concluded that [p]roof beyond a reasonable doubt that the
substance sold was in fact contraband must be offered at trial. Bolden v. Sheriff, 93 Nev. 8, 9, 558 P.2d 628,
628 (1977) (holding that proof that the substance was a controlled substance at the preliminary hearing is
unnecessary if the accused represents it to be a controlled substance); see also Glosen v. Sheriff, 85 Nev. 145,
451 P.2d 841 (1969). The State argues that Bolden is distinguishable from the instant matter because Bolden
involved a sale, not an offer to sell. We conclude that the State's argument ignores the plain language of NRS
453.321 and the reasoning underlying Bolden, i.e., proof of a controlled substance is still required at trial.
Additionally, our interpretation of NRS 453.321 is further supported by an analysis of NRS 453.323(1)
3
and NRS 453.332.
4
Both NRS 453.323(1) and NRS 453.332 appear to apply to Paige's conduct in that both
statutes involve non-controlled substances. In this case, it is undisputed that the substance sold to Turney was not
a controlled substance. Consequently, NRS 453.321, NRS 453.323(1), and NRS 453.332 are part of an overall
statutory scheme that is designed to supplement, not supplant, the intended coverage of one another. Therefore,
we conclude that the plain language of NRS 453.321 covers particular offenses relating to the sale of an actual
controlled substance, whereas both NRS 453.323{1) and NRS 453.332 cover offenses not
involving the sale of an actual controlled substance.
__________

3
NRS 453.323 provides in relevant part:
1. A person who offers, agrees or arranges unlawfully to sell, supply, transport, deliver, give or
administer any controlled substance classified in schedule I or II and then sells, supplies, transports,
delivers, gives or administers any other substance in place of the controlled substance is guilty of a
category C felony . . . .

4
NRS 453.332 provides in relevant part:
1. [I]t is unlawful for a person to manufacture, distribute, sell or possess with the intent to distribute
or sell an imitation controlled substance.
. . . .
5. For the purposes of this section:
. . . .
(b) Imitation controlled substance means a substance, not a controlled substance . . . .
(1) In the form distributed is shaped, marked or colored so as to lead a reasonable person to
believe it is a controlled substance; or
(2) Is represented to be a controlled substance. In determining whether such a representation
was made, the court shall consider, in addition to all other logically relevant factors:
(I) Statements made by the defendant regarding the nature of the substance, its use or
effect.
(II) Statements made by the defendant regarding the recipient's ability to resell the
substance at a substantially higher price than is customary for the substance.
(III) Whether the substance is packaged in a manner normally used for illicit
controlled substances.
116 Nev. 206, 210 (2000) Paige v. State
NRS 453.323(1) and NRS 453.332 cover offenses not involving the sale of an actual controlled substance. Any
other interpretation of NRS 453.321 renders NRS 453.323(1) and NRS 453.332 superfluous.
[Headnote 3]
Accordingly, we conclude that the plain language of NRS 453.321 requires the existence of an actual
controlled substance in order to sustain a conviction for offering to sell a controlled substance. We further
conclude that the State failed to present sufficient evidence to convict Paige under NRS 453.321. For this
reason, we reverse and vacate Paige's conviction.
5

____________
116 Nev. 210, 210 (2000) Guerin v. Guerin
TRACY O. GUERIN, Now by Marriage TRACY O. HILL; CHARLES A. HILL, Individually; and THE HILL
FAMILY TRUST, Appellants, v. HAROLD D. GUERIN, THOMAS M. GUERIN, and TERAN ANN
DAVIS, Respondents.
No. 33741
February 24, 2000 993 P.2d 1256
Motion to dismiss appeal of Tracy O. Guerin under the fugitive disentitlement doctrine. Eighth Judicial
District Court, Clark County; William O. Voy, Judge, Family Court Division.
After remand from the supreme court, 114 Nev. 127, 953 P.2d 716 (1998), the district court found former
wife in criminal contempt for failing to transfer real property pursuant to amended divorce decree and instead
transferring the property to her family trust. Wife and trust appealed. The supreme court held that: (1) supreme
court would exercise its discretion under fugitive disentitlement doctrine to dismiss former wife's appeal, and (2)
trust's notice of appeal was the product of unauthorized practice of law, and thus, supreme court was without
jurisdiction over trust's
appeal.
Motion granted; appeal dismissed in part.
Jack G. Perry, Las Vegas, for Appellant Hill Family Trust.
__________

5
Paige also argues that the district court erred by refusing to instruct the jury that the offense of unlawful sale
of an imitation controlled substance under NRS 453.332 is a lesser-related offense of NRS 453.321. In light of
our conclusion that the State failed to present sufficient evidence to convict Paige of offering to sell a controlled
substance, we find it unnecessary to address this issue.
Tracy O. Hill and Charles A. Hill, Las Vegas, in Proper Person.
Law Office of Daniel Marks and Adam Levine, Las Vegas, for Respondents.
1. Contempt.
An appellate court has the discretion to dismiss an appeal of a party who is evading arrest pursuant to a contempt order and bench
warrant.
2. Divorce.
Supreme court would exercise its discretion under fugitive disentitlement doctrine to dismiss former wife's appeal of trial court's
orders finding her in criminal contempt for failing to transfer real property pursuant to amended divorce decree and ordering her to
transfer property to former husband, where wife was in Mexico and she had notified the trial court of her refusal to comply with its
property-transfer order.
3. Divorce.
Supreme court had no jurisdiction over the appeal by wife's family trust in divorce action, where the notice of appeal was filed by
a proper person who was not an active member of the bar, so that the notice of appeal was the product of the unauthorized practice of
law.
4. Attorney and Client.
A proper person is not permitted to represent an entity such as a trust; rather, a trust must be represented by a licensed attorney in
the state courts.
Only an active member of the State Bar of Nevada, pursuant to the rules of the supreme court, is permitted to practice law in
Nevada, and a violation of this rule is a crime. NRS 7.285; SCR 77.
Although an individual is entitled to represent himself or herself in the district court, no rule or statute permits a non-attorney to
represent any other person, a company, a trust, or any other entity in the district courts or in the supreme court. SCR 44.
The proper and timely filing of a notice of appeal is jurisdictional.
The supreme court cannot treat an improperly-filed notice of appeal as vesting jurisdiction in the supreme court.
The supreme court cannot treat a notice of appeal, which is the product of unauthorized practice of law, as having been properly
filed and as vesting jurisdiction in the supreme court.
OPINION
Per Curiam:
This is a proper person appeal from a second amended divorce decree, an order directing appellant Tracy
O. Hill (formerly Tracy O. Guerin)
O. Guerin) to effect the transfer of certain real property in Mexico to respondent Harold D. Guerin and to appear
in the district court to demonstrate full compliance with its orders, and an order sanctioning Ms. Hill for
contempt of court. Upon respondents' motion, we dismiss appellant Tracy Hill's appeal under the fugitive
disentitlement doctrine because she has flaunted the authority of the district court. We also dismiss the appeal of
the Hill Family Trust because its notice of appeal is defective.
Ms. Hill and Guerin previously came before this court in Guerin v. Guerin, 114 Nev. 127, 953 P.2d 716
(1998), which consolidated two appeals and a writ petition. In Guerin, the district court, inter alia, denied
Guerin's motion to set aside the default divorce decree that Ms. Hill had obtained against him. The district court
also found Ms. Hill in contempt for violating an injunction against transferring certain assets that the parties had
created during their marriage from the Guerin Family Trust to the Hill Family Trust, which Ms. Hill
subsequently created with her new husband, Charles Hill. This court concluded that the district court abused its
discretion in refusing to set aside the default divorce decree because Ms. Hill had failed to provide Guerin the
requisite three-day notice of the default hearing pursuant to NRCP 55(b)(2). See Guerin, 114 Nev. at 133, 953
P.2d at 720. This court also upheld the district court's contempt order after concluding that Ms. Hill clearly did
not comply with the district court's orders. Id. at 134, 953 P.2d at 721.
On remand, the parties participated in settlement negotiations that produced an amended divorce decree.
Pursuant to a motion to alter or amend the amended divorce decree filed by the Hills, the district court entered a
second amended divorce decree on January 6, 1999. The second amended divorce decree, inter alia, awarded
Guerin two beach houses in San Carlos, Mexico, and directed Ms. Hill to provide a court-appointed receiver
with documentary proof that she had transferred title to the two houses to Guerin by January 11, 1999. The
district court subsequently found that following the settlement negotiations and prior to the entry of the second
amended divorce decree, Ms. Hill had transferred title to one of the beach houses (No. 21)
1
to a Mexican
national who had been acting as her agent for the property.
In an order entered on January 13, 1999, the district court ordered Ms. Hill (1) to execute the necessary
documents to transfer title to both beach houses to Guerin by January 15, 1999, and (2) to appear in court on
January 15, 1999, to demonstrate full compliance with its orders. Through their counsel, the Hills notified the
court of their refusal to comply with its order.
__________

1
Ms. Hill possesses the two beach houses in San Carlos: one is number 19 Paseo Almajas, the other is
number 21.
fied the court of their refusal to comply with its order.
2
In an order entered on January 19, 1999, the court
found Ms. Hill in contempt and sentenced her to thirty days in jail. The district court's order explained that Ms.
Hill could purge the contempt and jail sentence on the condition (1) that she appear in court on January 21,
1999, (2) that she execute the transfer of title to both beach houses before that date, and (3) that she immediately
surrender possession of No. 21 to Guerin.
Ms. Hill again failed to appear in court or execute the transfer of title. In an order entered on January 28,
1999, the court (1) reaffirmed its finding of contempt but reduced Ms. Hill's jail sentence to twenty-five days, (2)
decreed that Ms. Hill's transfer of title to No. 21 to her Mexican agent was void, (3) directed Ms. Hill to pay
Guerin reasonable rental value for No. 21 until possession of the property was transferred to Guerin, (4)
authorized Guerin to take immediate possession of the beach houses, and (5) directed the release to Guerin of
certain funds held by the court-appointed receiver. The court also issued a warrant for Ms. Hill's arrest.
[Headnotes 1, 2]
Respondent Guerin has filed a motion to dismiss the appeal on the ground that Ms. Hill is a fugitive who has
refused to comply with the district court's order of contempt. An appellate court has the discretion to dismiss an
appeal of a party who is evading arrest pursuant to a contempt order and bench warrant. See United States v.
Barnette, 129 F.3d 1179 (11th Cir. 1997); see also Closset v. Closset, 71 Nev. 80, 280 P.2d 290 (1955). In light
of Ms. Hill's fugitive status and continued refusal to comply with the district court's orders, we exercise our
discretion to dismiss her appeal, and hereby dismiss the appeal as to Tracy O. Hill.
[Headnote 3]
Guerin also sought to dismiss the appeal as to Charles Hill and the Hill Family Trust, contending that Mr.
Hill was not in compliance with certain orders of the district court. On August 20, 1999, Guerin filed a motion
for expedited consideration of its motion to dismiss, in which he conceded that Mr. Hill may now be in
compliance with the orders of the district court. We, therefore, deny the motion to dismiss the appeal as to Mr.
Hill individually.
[Headnotes 4-6]
Charles Hill, purporting to represent the Hill Family Trust as its trustee, filed a notice of appeal on
its behalf.
__________

2
It appears that counsel subsequently withdrew because of their clients' refusal to comply with the court's
orders. Ms. Hill is currently living in one of the beach houses in San Carlos, according to Guerin.
its trustee, filed a notice of appeal on its behalf. A proper person, however, is not permitted to represent an entity
such as a trust. See Sunde v. Contel of California, 112 Nev. 541, 915 P.2d 298 (1996); Salman v. Newell, 110
Nev. 1333, 885 P.2d 607 (1994). As we stated previously in Salman, a trust must be represented by a licensed
attorney in Nevada state courts. 110 Nev. at 1335-36, 885 P.2d at 608. Only an active member of the State Bar
of Nevada, pursuant to the rules of this court, is permitted to practice law in this state; a violation of this rule is a
crime. See NRS 7.285. In addition, SCR 77 provides that, with certain inapplicable exceptions, no person may
practice law as an officer of the courts in this state who is not an active member of the state bar. Although an
individual is entitled to represent himself or herself in the district court, see SCR 44, no rule or statute permits a
non-attorney to represent any other person, a company, a trust, or any other entity in the district courts or in this
court. Salman, 110 Nev. at 1336, 885 P.2d at 608. In the present case, Mr. Hill could not represent the Hill
Family Trust in a court of law because his actions would amount to unauthorized practice.
[Headnotes 7-9]
The proper and timely filing of a notice of appeal is jurisdictional. Rust v. Clark Cty. School District, 103
Nev. 686, 747 P.2d 1380 (1987). This court cannot treat an improperly-filed notice of appeal as vesting
jurisdiction in this court. In particular, we cannot treat a notice of appeal, which is the product of unauthorized
practice of law, as having been properly filed. Hence, the notice of appeal that Mr. Hill filed on behalf of the
Hill Family Trust is invalid, and we therefore lack jurisdiction to consider its appeal. Accordingly, we dismiss
the appeal of the Hill Family Trust.
3

__________

3
Although Ms. Hill and Mr. Hill were not granted leave to file papers in proper person, see NRAP 46(b), we
have considered the proper person documents received from them. We grant Guerin's motion to file a reply, and
direct the clerk of this court to file the reply received from him. We deny Guerin's motion to expedite his motion
to dismiss Ms. Hill's appeal as moot in light of this partial disposition. We deny the motion to disqualify the
attorney for the Hill Family Trust as moot. We direct the clerk of the court to modify the caption on this court's
docket to reflect the partial disposition set forth in this opinion.
____________
116 Nev. 215, 215 (2000) Byford v. State
ROBERT BYFORD, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32207
February 28, 2000 994 P.2d 700
Appeal from a judgment of conviction pursuant to a jury verdict of one count of first-degree murder with the
use of a deadly weapon and a sentence of death. Eighth Judicial District Court, Clark County; Joseph T.
Bonaventure, Judge.
Defendant and codefendant were convicted in the district court of first-degree murder with use of deadly
weapon and were sentenced to death, and they appealed. The supreme court, 113 Nev. 11, 930 P.2d 121 (1997),
reversed and remanded for retrial. On remand, defendant was again convicted in the district court of first-degree
murder with use of deadly weapon and was again sentenced to death. Defendant appealed. The supreme court,
Shearing, J., held that: (1) defendant's testimony from first trial was admissible on retrial; (2) any error in
accomplice's reference during direct examination by State to first meeting murder defendant at the 120-day
evaluation was harmless; (3) error in admitting at retrial murder defendant's testimony from first trial that he
had prior felony conviction for attempted possession of a stolen vehicle did not require reversal; (4) prosecutor's
improper statement during closing argument referring to defendant's failure in first trial to call witness to
corroborate alibi was harmless; (5) denial of motion to sever did not prejudice defendant; (6) defendant's right to
speedy trial was not violated; (7) photographs of victim's body and preserved sample of maggots taken from
body were admissible; (8) instruction defining mens rea required for first-degree murder conviction was
warranted by evidence; and (9) finding that aggravating circumstance of torture or mutilation existed in capital
murder case was supported by evidence.
Affirmed.
David M. Schieck, Las Vegas, for Appellant.
Chief Deputy District Attorney, and Christopher J. Lalli, Deputy District Attorney, Clark County, for
Respondent.
1. Witnesses.
An explicit warning to a defendant that his or her testimony might be used against him or her in a future trial is not required in
order for the defendant's waiver of the right to remain silent to be valid.
2. Criminal Law.
If a defendant has been compelled to testify at his or her first trial due to constitutional violations during that trial, that testimony is
not admissible at any subsequent trial.
3. Criminal Law.
Prosecutor's improper comments on murder defendant's Fifth Amendment right to remain silent did not compel defendant to testify
during first trial, and thus defendant's testimony from first trial was admissible on retrial, where comments were made by prosecutor
after defendant had concluded his testimony. U.S. Const. amend. 5.
4. Criminal Law.
Generally, a defendant's testimony at a former trial is admissible against him in later proceedings.
5. Criminal Law.
Introduction of murder defendant's testimony from first trial did not constitute improper comment on defendant's decision not to
testify on retrial, where former testimony was introduced by codefendant, and State never referred to prior testimony as way of
commenting on defendant's silence at second trial.
6. Criminal Law.
Murder defendant's testimony from first trial was admissible in subsequent retrial under statutory hearsay exception for former
testimony, where defendant was unavailable due to invocation of his Fifth Amendment right not to testify, issues in both trials were
identical, and codefendant offered prior testimony against State, which was party to first trial. U.S. Const. amend. 5; NRS 51.325.
7. Criminal Law.
Accomplice's reference during direct examination by State to first meeting murder defendant at the 120-day evaluation was
improper. Reasonable juror could conclude from accomplice's statement that defendant had engaged in prior criminal activity.
8. Criminal Law.
Any error in accomplice's reference during direct examination by State to first meeting murder defendant at the 120-day
evaluation was harmless, where statement was unsolicited and inadvertent, reference to criminal activity was brief and indirect, and
defendant declined district court's offer to give curative instruction.
9. Witnesses.
Defendant's testimony at first trial that he had prior felony conviction for attempted possession of a stolen vehicle was not
admissible in retrial for murder under statute which provides that witness's felony conviction is admissible for purpose of attacking
credibility of that witness, where defendant had invoked his Fifth Amendment right not to testify. U.S. Const. amend. 5; NRS
50.095(1).
10. Criminal Law; Witnesses.
Defendant's testimony at first trial that he had prior felony conviction for attempted possession of a stolen vehicle was not
admissible in retrial for murder under statutory hearsay exception for evidence attacking or supporting credibility of declarant, where
defendant had invoked his Fifth Amendment right not to testify. U.S. Const. amend. 5; NRS 51.069(1).
11. Criminal Law.
Error in admitting at retrial murder defendant's testimony from first trial that he had prior felony conviction for attempted
possession of a stolen vehicle did not require reversal of conviction,
a stolen vehicle did not require reversal of conviction, where prior conviction was not heinous, and evidence of defendant's guilt was
overwhelming.
12. Criminal Law.
It is generally improper for a prosecutor to comment on a defendant's failure to call a witness, as such comment can be viewed as
impermissibly shifting the burden of proof to the defense.
13. Criminal Law.
Statement by prosecutor during closing argument in retrial of murder charge, in which prosecutor commented on defendant's
failure in first trial to call witness to corroborate alibi which defendant admitted he fabricated, was improper. Statement incorrectly
implied that defendant bore burden of proof on issue.
14. Criminal Law.
Prosecutor's improper statement during closing argument in retrial of murder charge, in which prosecutor commented on
defendant's failure in first trial to call witness to corroborate alibi which defendant admitted he fabricated was harmless. Issue was of
little significance, and district court immediately sustained defendant's objection, and evidence of defendant's guilt was overwhelming.
15. Criminal Law.
Denial of murder defendant's motion to sever his retrial from that of codefendant did not result in prejudice to defendant, even
though codefendant introduced defendant's prior testimony from first trial against him. Had trials been severed, State would also have
been permitted to introduce defendant's prior testimony.
16. Criminal Law.
Joinder of defendants is within the discretion of the district court, and its decision will not be reversed absent an abuse of
discretion. NRS 174.165(1).
17. Criminal Law.
In determining whether to grant or deny a motion for severance, the district court must consider not only the possible prejudice to
the defendant, but also the possible prejudice to the State resulting from expensive, duplicitous trials. NRS 174.165(1).
18. Criminal Law.
A nontestifying defendant's admission which expressly incriminates another defendant cannot be used at a joint trial.
19. Criminal Law.
To determine if a defendant's Sixth Amendment right to a speedy trial was violated, a court must conduct a balancing test,
considering the length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Unless
the delay is long enough to be presumptively prejudicial, inquiry into the other factors is not necessary. U.S. Const. amend. 6.
20. Criminal Law.
Retrial of murder defendant approximately one year after defendant's original conviction was reversed did not violate defendant's
right to speedy trial, where one delay attributable to State was caused by unavailability of witnesses, remaining delays were attributable
to codefendant, and defendant could show no prejudice resulting from delay. U.S. Const. amend. 6.
21. Criminal Law.
Six photographs of murder victim's burned and partially decomposed body and preserved sample of maggots taken
from victim's body were admissible to portray crime scene,
posed body and preserved sample of maggots taken from victim's body were admissible to portray crime scene, to aid witness in
describing cause of death, to corroborate accomplice's testimony as to how murder occurred, and to show extent of damage to victim's
body and demonstrate why so few bullets were found in her body.
22. Criminal Law.
Admission of evidence is within the trial court's sound discretion. The supreme court will respect the trial court's determination as
long as it is not manifestly wrong.
23. Criminal Law.
Gruesome photos are admissible in a criminal prosecution if they aid in ascertaining the truth.
24. Criminal Law.
Despite gruesomeness, photographic evidence is admissible when it accurately shows the scene of the crime or when it is utilized
to show the cause of death and when it reflects the severity of wounds and the manner of their infliction.
25. Courts; Criminal Law.
A trial court ruling does not constitute law of the case. The law of a first appeal is the law of the case on all subsequent appeals in
which the facts are substantially the same.
26. Criminal Law.
Evidence that a statement was made and the listener was affected by the statement is not hearsay if not offered to show the truth of
the statement.
27. Homicide.
Implied malice instruction, which states that malice shall be implied when no considerable provocation appears, or when all the
circumstances of the killing show an abandoned and malignant heart, is proper in murder prosecution if the jury is properly instructed
on the presumption of innocence. NRS 200.020(2).
28. Criminal Law.
Antisympathy instruction does not undermine a murder defendant's right to have the jury consider all mitigating evidence if the
jury has also been instructed to consider any mitigating factors.
29. Homicide.
Kazalyn instruction, which defines mens rea required for first-degree murder conviction, was warranted by evidence that
defendant and codefendant had talked of get[ting] rid of victim on prior occasions, that defendant and codefendant discussed
shooting victim before actually doing so, and that defendant took gun from codefendant and shot victim several times as she lay
helpless on the ground.
30. Homicide.
Conviction for willful first-degree murder requires that the killer actually intend to kill. NRS 200.030(1)(a).
31. Homicide.
Deliberation and premeditation are the truly distinguishing elements of first-degree murder. NRS 200.030(1)(a).
32. Homicide.
All three elements of willfulness, deliberation, and premeditation must be proven beyond a reasonable doubt before an accused can
be convicted of first-degree murder. NRS 200.030(1)(a).
33. Homicide.
Deliberation remains a critical element of the mens rea necessary for first-degree murder,
sary for first-degree murder, connoting a dispassionate weighing process and consideration of consequences before acting. NRS
200.030(1)(a).
34. Homicide.
In order to establish first-degree murder, the premeditated killing must also have been done deliberately, that is, with coolness
and reflection. NRS 200.030(1)(a).
35. Homicide.
Kazalyn instruction, which defines mens rea required for first-degree murder conviction without reference to deliberation element
of that offense, should not be used. If jury is instructed separately on meaning of premeditation, it should also be instructed on meaning
of deliberation. NRS 200.030(1)(a).
36. Homicide.
If jurors find that a defendant killed the victim under the influence of uncontrollable passion, and without any mixture of
deliberation, and if at the same time they think that the circumstances were not such as to justify the existence or persistence of
irresistible passion in a reasonable man, then a verdict of second-degree murder is warranted.
37. Homicide.
Neither slight provocation nor an assault of a trivial nature will reduce a homicide from murder to manslaughter.
38. Homicide.
In penalty phase of capital murder prosecution, district court is statutorily required to instruct jury on alleged mitigators upon
which evidence has been presented, and is not restricted to instructing jury only as to enumerated statutory mitigators. NRS
175.554(1).
39. Criminal Law.
It is the appellant's responsibility to provide the materials necessary for the supreme court's review.
40. Homicide.
Defendant failed to preserve for appellate review issue as to whether district court erred in refusing to give his proposed mitigation
instruction during penalty phase of capital murder trial, where defendant failed to provide supreme court with copy of his proposed
instruction, and defendant did not cite to district court statute requiring that jury be instructed on all mitigating factors as to which
evidence has been presented. NRS 175.554(1).
41. Homicide.
District court did not plainly err in refusing to give defendant's proposed mitigation instruction during penalty phase of capital
murder trial, where defendant was able to present his theories of mitigation to jury in closing argument, and nothing precluded jury
from considering that argument and any evidence presented in mitigation.
42. Criminal Law.
The absence of instructions on particular mitigating factors in the penalty phase of a capital murder trial does not violate the
Eighth and Fourteenth Amendments. U.S. Const. amends. 8, 14.
43. Homicide.
Instructions during penalty phase of capital murder trial that jury could impose death sentence only if jurors unanimously found
existence of at least one aggravating factor beyond reasonable doubt, unanimously determined that any mitigating circumstances did
not outweigh aggravating circumstances, and unanimously determined that death sentence was appropriate, and that other arrests,
conduct or bad acts, if any, committed by defendant were to be considered for character only and not as
aggravating circumstances properly informed jurors that, in deciding whether to impose death sentence,
they could not consider general character evidence until they determined that defendant was eligible for
death penalty.
ted by defendant were to be considered for character only and not as aggravating circumstances properly informed jurors that, in
deciding whether to impose death sentence, they could not consider general character evidence until they determined that defendant
was eligible for death penalty.
44. Homicide.
Finding that aggravating circumstance of torture or mutilation existed in capital murder case was supported by evidence that
defendant and codefendant killed victim for revenge, that codefendant shot victim in back several times and then denied shooting her,
that codefendant shot victim several more times and called her a bitch, and that defendant and codefendant attempted to burn
victim's body after she was dead. NRS 200.033(8).
45. Homicide.
Basing aggravating circumstances on the actions of the murderer following the victim's death is proper.
46. Homicide.
Mutilation of a murder victim's body, whether it occurs before or after the victim's death, is an aggravating circumstance for
purposes of capital murder prosecution. NRS 200.033(8).
47. Criminal Law.
Although individual errors may be harmless, the cumulative effect of multiple errors may violate a defendant's constitutional right
to a fair trial.
48. Criminal Law.
Death sentence imposed on murder defendant was not excessive, even though codefendant who was arguably more culpable was
sentenced to life imprisonment, where defendant had worse criminal record prior to murder than codefendant, codefendant was
younger than defendant, and defendant fired two fatal shots into victim's head as she lay helpless on ground. NRS 177.055(2).
OPINION
By the Court, Shearing, J.:
In 1992, the State charged appellant Robert Royce Byford and two codefendants, Christopher Garth
Williams and Todd Smith, with the murder of Monica Wilkins. Smith later pleaded guilty to one count of
accessory to murder and agreed to testify against Byford and Williams. In 1994, Byford and Williams
were found guilty by a jury and sentenced to death, but this court reversed their convictions and
remanded for retrial due to violation of their Fifth Amendment right to remain silent. Murray v. State,
113 Nev. 11, 930 P.2d 121 (1997).
After retrial, Byford and Williams were again convicted. Byford received a death sentence, and
Williams a term of life in prison without the possibility of parole. Byford appeals on a number of grounds.
We conclude that none warrant relief and affirm.
FACTS
Byford's second trial began in February 1998, at which time the following evidence was adduced.
Byford, Williams, and two teenage girls were visiting Smith at his parents' residence in Las Vegas on March
8, 1991. Byford was twenty years old, Williams seventeen, and Smith nineteen. Monica Wilkins, who was
eighteen, called and told Smith she would pay him for a ride home from a local casino. Smith drove his jeep to
pick Wilkins up, accompanied by Williams and one of the girls. After Smith picked up Wilkins and her friend,
Jennifer Green, he asked Wilkins for gas money. Wilkins had Smith stop at a Burger King so that she could get
some money. Williams went inside the store to see what was taking her so long, and Wilkins told him that she
had gotten another ride. Smith and Williams were upset with Wilkins, and after they drove away, Williams fired
a handgun out the window of the jeep.
Smith testified that Wilkins had angered him, Williams, and Byford before because she had invited them to
her apartment to party but then left with other men. Byford and Williams had talked about get[ting] rid of
her because she was always playing games with our heads. Smith participated in the talk but took the
threats as jokes.
Later that night, Smith, Williams, and Byford were together at Smith's house when Wilkins called again for a
ride home. Accompanied by Byford and Williams, Smith drove to pick her up. Smith then drove all four of them
to the desert outside of town to find a party that Byford heard was taking place. Wilkins told the other three that
she had taken LSD earlier and was hallucinating. Smith drove to the usual area for parties, but they found no
party. They then stopped so that everyone could urinate. Wilkins walked up a ravine to do so.
Smith testified to the following. As Wilkins finished, Byford handed Williams a handgun and said he
couldn't do it. Smith asked Byford what he was doing with the gun, and Byford told Smith to stay out of it.
Williams then shot Wilkins in the back three to five times. She screamed and fell to the ground. Wilkins got up,
walked to Williams, and asked him why he had shot her. He told her that he had only shot around her. Wilkins
walked up out of the ravine but then felt the back of her neck, saw that she was bleeding, and again confronted
Williams. Williams told her that he shot her because she was a bitch. He then walked behind her and shot her
again repeatedly. Wilkins screamed and fell to the ground again. Byford then took the gun from Williams, said
that he would make sure the bitch is dead, and fired two shots into her head. Byford then got a can of
gasoline from the jeep and poured it on Wilkins.
jeep and poured it on Wilkins. Byford tried to hand a lighter to Smith and get him to light the gasoline, but Smith
refused. Byford called him a wussie and lit the body. As it burned, the three drove off. As they returned to Las
Vegas, Byford pointed the handgun at Smith and threatened to kill him if he ever told anyone.
Smith further testified that about a week after the murder, Byford and Williams had him drive them back to
the desert to bury the body. An inmate who was incarcerated in jail with Byford and Williams after their arrest
also testified that the two told him about this trip back to the body. They told the inmate that the body was
decomposing and had maggots on it. Byford and Williams rolled the corpse into the ravine and partly covered it
with a few shovelfuls of dirt.
After about two more weeks, the body was discovered by target shooters. Las Vegas Metropolitan Police
Department investigators collected sixteen .25 caliber shell casings at the site; ballistic testing showed that all
were fired from the same weapon. Ten .25 caliber bullets were recovered; five were in the body. Three bullets
were in the chest and abdomen, and two were in the head. Either of the bullets in the head would have been fatal.
The body was partly eaten by coyotes or wild dogs. Other bullets could have been lost from the body due to this
eating or the burning and decomposition of the body. The burning appeared to be postmortem.
In mid-April 1991, Byford's friend, Billy Simpson, was visiting Byford's residence. When the two came upon
a dead rabbit covered with maggots, Byford told Simpson that he had seen maggots on a human body before.
That same night, Simpson and his brother Chad observed Byford and Williams engage in play acting in which
Williams acted as if he shot Byford with a gun, Byford fell and then stood back up, and Williams opened his
eyes wide and pretended to reload and shoot him again. Byford and Williams explained that they had shot and
killed Wilkins in the desert and then burned her body.
In the spring or summer of 1991, Byford conversed with two girls in a city park. He admitted to them that he
and Williams had shot and killed a girl in the desert and then burned her body. He told them that he wanted to
see what would happen when someone under the influence of acid was shot. In August 1991, Byford told
another friend that he was a bad person and had done evil things because he had shot and killed someone in
order to know what it felt like to kill someone.
After the police investigation led to Byford and Williams, Byford asked his girlfriend to provide an alibi for
him by telling the police that on the night of the murder they had been on the phone all night.
Neither Byford nor Williams testified. However, Williams introduced, over Byford's objection, Byford's
testimony from the first trial. The gist of that prior testimony was that Smith and Wilkins were boyfriend and
girlfriend, that they argued that night, that Smith shot Wilkins, and that Byford and Williams only aided Smith in
concealing the crime. The testimony also included Byford's admission that he had a prior felony conviction for
attempted possession of a stolen vehicle. In closing argument, the prosecutor referred to Byford as a convicted
felon.
The jury found Byford and Williams guilty of first-degree murder with the use of a deadly weapon.
At the penalty hearing, the State called Marian Wilkins, the mother of the victim, to testify on the impact of
losing her daughter. A probation officer testified that Byford had violated his probation conditions in 1991 and
been placed under house arrest. Byford violated house arrest in 1992 by removing his transmitter bracelet and
absconding. The officer also described Byford's juvenile record, which included burglary in 1984 and carrying a
concealed weapon in 1987. A detention officer testified that in 1994 Byford was disciplined for fighting with
another inmate at the Clark County Detention Center; the officer considered Byford to be a behavioral problem
for the Center.
Two of Byford's aunts testified to Byford's good character growing up, as did his sister. Byford's mother also
testified on his behalf and described him as a good boy and a caring son. Byford and his father had often got in
conflicts, and his father was heavy-handed in disciplining him. Byford was very close to his grandfather. When
his grandfather died, he became angry and withdrawn and quit attending church. Byford's mother was raising
Byford's son. Byford talked with his son on the phone and was a good influence on him.
Thomas Kinsora, a Ph.D. in clinical neuropsychology, testified for Byford. Byford was diagnosed with
attention deficit disorder as a child. He had conflicts with and anger toward his father for the latter's abuse of
alcohol and emotional distance. Byford lost interest in school and immersed himself in alcohol and marijuana
after his grandfather's death. He later used methamphetamines heavily for a time. After testing Byford, Dr.
Kinsora concluded that the results were largely unremarkable and that Byford was not psychopathic.
Byford spoke briefly in allocution and said that he was sorry for his part in Wilkins's death.
In Byford's case, jurors found one mitigating circumstance: possible substance abuse. The jury found two
aggravating circumstances: the murder was committed by a person under sentence of imprisonment and involved
torture or mutilation of the victim.
victim. Byford received a sentence of death. In Williams's case, jurors found six mitigating circumstances. One
aggravating circumstance was found: the murder involved torture or mutilation of the victim. Williams received
a sentence of life imprisonment without possibility of parole.
DISCUSSION
I. Alleged errors related to the admission of appellant's prior testimony
Neither Byford nor Williams testified during the guilt phase. However, Williams introduced, over Byford's
objection, Byford's testimony from the first trial. As stated above, the gist of that prior testimony was that Smith
and Wilkins were boyfriend and girlfriend, that they argued that night, that Smith shot Wilkins, and that Byford
and to a lesser extent Williams only aided Smith in concealing the crime. The testimony also included Byford's
admission that he had a prior felony conviction for attempted possession of a stolen vehicle, and in closing
argument the prosecutor referred to Byford as a convicted felon.
A. Admission of the prior testimony and appellant's constitutional rights
Byford asserts that admission of his prior testimony violated his constitutional rights. We conclude that this
assertion lacks merit.
1

[Headnote 1]
First, Byford argues that his waiver of the right to remain silent at his first trial was invalid because he was
not informed that his testimony could be used at a later proceeding. He offers no authority to support this
argument. The New Mexico Court of Appeals rejected the same argument, holding that an explicit warning that
testimony might be used in a future trial is not required. State v. DeSantos, 575 P.2d 612, 614 (N.M. Ct. App.
1978). DeSantos does not provide much explanation for its holding, but we conclude that the holding is correct
because Byford's argument is not persuasive when scrutinized. It rests on the unspoken premise that even though
he considered it in his best interest to testify when faced with the certainty of his first trial, he would nevertheless
have chosen not to testify to avoid the possibility, if he had been informed of it, that his testimony might be used
at a retrial. This premise makes no sense, and the argument has no merit.
__________

1
The fact that this prior testimony included evidence of Byford's prior felony conviction is a separate issue
which we address below.
[Headnotes 2, 3]
Second, Byford contends that he was compelled to testify at the first trial due to constitutional violations
during that trial. If so, his prior testimony would not be admissible. See Harrison v. United States, 392 U.S. 219,
222 (1968); U.S. v. Pelullo, 105 F.3d 117, 125 (3d Cir. 1997). Byford's first conviction was reversed because of
improper comments on his Fifth Amendment right to remain silent; however, he concedes that the comments
occurred after he had testified, therefore, those comments could not have compelled him to testify. He asserts
that other errors occurred earlier in the first trial which caused him to testify, but he fails to specify them. This
claim therefore warrants no relief. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987) (this court
need not address issues unsupported by cogent argument).
[Headnotes 4, 5]
Third, Byford contends that the use of his prior testimony constituted an improper comment on his decision
not to testify at the second trial. Byford does not cite authority or refer to any facts to support this contention.
Generally, a defendant's testimony at a former trial is admissible against him in later proceedings. Harrison, 392
U.S. at 222. [I]f otherwise admissible, a defendant's prior testimony may be introduced at a second trial as part
of the state's case-in-chief. Turner v. State, 98 Nev. 103, 106, 641 P.2d 1062, 1064 (1982). Moreover, in this
case, the State did not introduce the prior testimony; Williams, Byford's codefendant, did. Our review of the
record indicates that the State never referred to the prior testimony as a way of commenting on Byford's silence
at the second trial.
B. Admission of the prior testimony and the rules of evidence
[Headnote 6]
Byford maintains that admission of his prior testimony was improper under the rules of evidence. In
response, the State primarily cites authority which would have allowed it to introduce the testimony against
Byford, but this misses the point since Williams introduced the testimony. For example, NRS 51.035(3) allows a
statement made by or attributable to a party to be offered against that party, but Williams did not offer Byford's
prior testimony against Byford, but against the State.
Nevertheless, the prior testimony was admissible pursuant to NRS 51.325, which provides:
Testimony given as a witness at another hearing of the same or a different proceeding . . .
same or a different proceeding . . . is not inadmissible under the hearsay rule if:
1. The declarant is unavailable as a witness; and
2. If the proceeding was different, the party against whom the former testimony is offered was a party
or is in privity with one of the former parties and the issues are substantially the same.
This statute applies here. First, Byford, the declarant, was unavailable due to invocation of his Fifth Amendment
right not to testify. See Funches v. State, 113 Nev. 916, 923, 944 P.2d 775, 779 (1997). Second, the issues in
both trials were the same. Third, the party against whom Williams offered the prior testimony was the State, a
former party.
C. Admission of evidence of prior bad acts
The reading of Byford's prior testimony revealed that he had a prior felony conviction for attempted
possession of a stolen vehicle, and in closing argument the prosecutor referred to Byford as a convicted felon.
Also, when Smith testified for the State, the prosecutor asked him how long he had known Byford before he met
Williams. Smith said, I'd saywell, I met him in the 120-day evaluation in. The prosecutor interrupted,
Whatno, I'm talking about Mr. Williams, not [Byford]. Byford moved unsuccessfully for a mistrial after the
latter incident and declined a curative instruction. Later in Smith's testimony, the jury learned that before the
murder in this case occurred, Smith had been convicted of a felony and served some time in prison.
Byford contends that these references to his prior conviction and 120-day evaluation were improper
character evidence. The State asserts that the jury would not have taken the statement regarding the 120-day
evaluation as a reference to a bad act.
[Headnotes 7, 8]
Smith's reference to meeting Byford at the 120-day evaluation was improper because a reasonable juror
could conclude from Smith's statement that Byford had engaged in prior criminal activity. See Rice v. State, 108
Nev. 43, 44, 824 P.2d 281, 281-82 (1992). However, we conclude that the error was harmless. The statement
was unsolicited and inadvertent, the reference to criminal activity was brief and indirect, and Byford declined the
district court's offer to give a curative instruction. See id.
[Headnote 9]
The evidence of Byford's prior conviction was also improperly admitted. The State first argues that it was
admissible under NRS 50.095(1), which provides that a witness's felony conviction is admissible for the
purpose of attacking the credibility of the witness.
admissible for the purpose of attacking the credibility of the witness. However, Byford was not a witness at the
second trial; on its face, therefore, NRS 50.095(1) does not apply. Cf. Commonwealth v. Boyle, 447 A.2d 250,
255 (Pa. 1982) (nontestifying defendant's prior testimony was admissible as substantive evidence of guilt, but the
defendant's credibility as a witness was not in issue and therefore there was no basis for the allowance of
evidence to demonstrate his unreliability as a witness).
[Headnote 10]
The State also argues the evidence was admissible based on NRS 51.069(1), which provides: When a
hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked or supported by
any evidence which would be admissible for those purposes if the declarant had testified as a witness. We reject
this argument as well since it does not consider that the declarant in this case was a criminal defendant who
invoked his Fifth Amendment right not to testify and enjoyed a due process right to a fair trial. In light of these
rights, we conclude that the legislature did not intend NRS 51.069(1) as a basis for admitting evidence of a
criminal defendant's prior convictions any time another party introduces a hearsay statement made by the
defendant.
Byford likens the use of his prior testimony to the use of a confession. Prior bad act evidence disclosed in a
defendant's confession is only admissible subject to NRS 48.045(2) after a hearing outside the presence of a
jury. Walker v. State, 112 Nev. 819, 823-24, 921 P.2d 923, 926 (1996). We consider Byford's analogy between
use of a defendant's prior testimony and use of a defendant's confession under Walker to be apt. Both implicate
the same concern that prior bad acts not be allowed in simply as character evidence.
[Headnote 11]
Here, the district court should simply have redacted the portion of the prior testimony relating to Byford's
prior conviction. Byford asked the court to do so, but the court refused. Therefore, the evidence of Byford's prior
conviction was improperly admitted, and the prosecutor improperly referred to Byford as a convicted felon.
Nevertheless, reversal is not warranted if the result would have been the same if the trial court had not admitted
the evidence. Qualls v. State, 114 Nev. 900, 903-04, 961 P.2d 765, 767 (1998). Even without this evidence and
Smith's reference to the 120-day evaluation, we conclude that the jury would have convicted Byford of
murder. The prior conviction was not heinousattempted possession of a stolen vehicleand the evidence
against Byford in this case, particularly in light of his numerous admissions, was overwhelming.
D. Reference to the prior testimony during the prosecutor's closing argument
In closing argument in the guilt phase, the prosecutor referred to Byford's prior testimony several times.
Byford claims that this was improper.
At one point in his prior testimony, Byford admitted that he had intended to build an alibi for Smith,
Williams, and himself by pretending that they had bowled the night of the murder; Byford said that he knew a
person who worked at the bowling alley. The prosecutor referred to this evidence in closing argument and
asked, Where's that person? Byford immediately objected, and the court ordered the question stricken.
The State contends that the prosecutor was simply saying that this evidence was uncorroborated.
Alternatively, it argues that the error was harmless.
[Headnotes 12-14]
It is generally improper for a prosecutor to comment on a defendant's failure to call a witness. Such
comment can be viewed as impermissibly shifting the burden of proof to the defense. Rippo v. State, 113 Nev.
1239, 1253, 946 P.2d 1017, 1026 (1997) (citation omitted), cert. denied, 525 U.S. 841, 119 S. Ct. 104 (1998).
The prosecutor's rhetorical question improperly implied that Byford carried a burden of proof on this issue;
however, the issue was of little significance. It is not clear why the prosecutor even challenged Byford's claim
regarding the aborted alibi attempt; Byford admitted in his prior testimony that it was a fabrication. Furthermore,
the district court immediately sustained the objection and struck the question. Given the evidence against
Byford, the error was clearly harmless. See id.
Byford challenges several other references to his prior testimony as improper comments on his decision not
to testify. We conclude that the prosecutor's references were neither intended as, nor reasonably understood to
be, comments on Byford's decision not to testify at the second trial. Byford complains that the prosecutor
specifically referred to his testimony and even his cross-examination. However, before Byford's statements
were read, the jury was expressly told that they were his prior sworn testimony. Byford did not object either
to this or to any of the State's references which he now takes exception to. We discern no error in these
statements by the prosecutor.
E. Denial of appellant's motion to sever
[Headnote 15]
Before trial, Byford moved unsuccessfully to sever his trial from Williams's. Byford says that joinder was
improper because it prejudiced him.
it prejudiced him. His primary argument is that use of his prior testimony by Williams damaged his defense.
2

[Headnotes 16, 17]
Joinder of defendants is within the discretion of the district court, and its decision will not be reversed absent
an abuse of discretion. Lisle v. State, 113 Nev. 679, 688, 941 P.2d 459, 466 (1997), cert. denied, 525 U.S. 830
(1998); see also NRS 174.165(1). A court must consider not only the possible prejudice to the defendant but
also the possible prejudice to the state resulting from expensive, duplicitous trials. Lisle, 113 Nev. at 688-89,
941 P.2d at 466.
[Headnote 18]
The State chose not to introduce either defendant's prior testimony, apparently because Byford and Williams
did not testify at the second trial and the State feared that introducing the testimony of each would violate the
other's Sixth Amendment right of confrontation under Bruton v. United States, 391 U.S. 123 (1968). Bruton
holds that a nontestifying defendant's admission which expressly incriminates another defendant cannot be used
at a joint trial. See, e.g., Ducksworth v. State, 114 Nev. 951, 966 P.2d 165 (1998) (due to Bruton violation, it
was reversible error not to grant severance of codefendants' trials).
However, if Byford's trial had been severed, then the State could have used Byford's prior testimony against
him as an admission without violating Williams's Sixth Amendment right of confrontation. See NRS
51.035(3)(a). Therefore, severance would not have prevented the introduction of his prior testimony, and the
joint trial did not unfairly prejudice Byford in this regard.
II. Appellant's right to a speedy trial
Byford contends that his right to a speedy trial was violated as a result of the joinder of his trial with
Williams's.
On January 3, 1997, this court reversed the original convictions and remanded. Murray, 113 Nev. at 11,
930 P.2d at 121. At a hearing on February 20, 1997, Byford invoked his right to a speedy trial, and trial was
scheduled for April 28, 1997. Williams moved to continue the trial. At a hearing on April 1, 1997, trial was reset
for August 18, 1997. Byford's counsel did not oppose the resetting, although Byford himself said that he was not
waiving his speedy trial right. On July 30, 1997, the State moved to continue the trial due to the unavailability of
two witnesses. Both Byford and Williams opposed the motion, but the district court granted it
and reset the trial for October 13, 1997.
__________

2
Byford also complains that several continuances by Williams violated his right to a speedy trial. We address
this issue in the next section.
Byford and Williams opposed the motion, but the district court granted it and reset the trial for October 13,
1997. On August 21, 1997, lead counsel for Williams was allowed to withdraw due to a conflict with Williams.
Byford objected to any continuance. On September 8, 1997, Williams's new counsel requested a continuance.
Although Byford and the State opposed continuance, the court reset the trial for February 23, 1998. The jury
trial began on that date.
NRS 178.556(1) provides that if the defendant has not postponed the trial, the district court may dismiss a
case not brought to trial within sixty days after arraignment. The State argues that this provision is not applicable
here because no arraignment occurred after remand. Even if this argument is sound, Byford still had a
constitutional right to a speedy trial. If the statute applies, its sixty-day time frame is mandatory only when there
is no good cause for delay. Sessions v. State, 111 Nev. 328, 332 n.4, 890 P.2d 792, 796 n.4 (1995). As discussed
below, we conclude that there was good cause.
[Headnote 19]
To determine if a defendant's Sixth Amendment right to a speedy trial was violated, a court must conduct a
balancing test. Barker v. Wingo, 407 U.S. 514, 530 (1972). The court should consider the length of delay, the
reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Id. Unless the delay is
long enough to be presumptively prejudicial, inquiry into the other factors is not necessary. Id.
[Headnote 20]
First, the delay here totaled about one year. This is not extreme, but long enough to conceivably cause
prejudice. Second, although Byford was not responsible for any delays, the delays all appear proper. The State
was responsible for one continuance, but Byford does not dispute that the State had good reason for the delay.
Williams was responsible for the other two continuances, and again Byford has not alleged that they were not
legitimate. Third, Byford asserted his speedy trial right in a timely fashion. Finally and most importantly, Byford
has not demonstrated that he was prejudiced by the delay. He complains that the delay allowed the State to
reassemble its witnesses, but such prejudice is not unfair. He also notes that he was held without bail awaiting
retrial, but he does not explain how this was improper or prejudicial in this case.
Byford suffered no prejudice; therefore, his right to a speedy trial was not violated, and the joint trial was not
erroneous.
III. Admission of photographs of the victim and maggots collected from her body
[Headnote 21]
Byford contends that maggots found on Wilkins's body (and preserved in a jar of formaldehyde) and
photographs of the body lacked probative value, were highly prejudicial, and were therefore erroneously
admitted. The State responds that the photos were admitted to portray the crime scene, to aid a witness in
describing the cause of death, to corroborate Smith's testimony as to how the murder occurred, and to show the
extent of damage to the body and demonstrate why so few bullets were found in the body. The State asserts that
it introduced the maggots to corroborate testimony that Byford had admitted to having seen maggots on the
body.
The photographs in question numbered six. The district court considered them and Byford's objections and
concluded that the photos were relevant to show the crime scene and the condition of the victim's body. The
court admitted the maggots as corroborative of the testimony regarding Byford's admissions.
[Headnotes 22-24]
Admission of evidence is within the trial court's sound discretion; this court will respect the trial court's
determination as long as it is not manifestly wrong. Colon v. State, 113 Nev. 484, 491, 938 P.2d 714, 719
(1997). Gruesome photos are admissible if they aid in ascertaining the truth. Scott v. State, 92 Nev. 552, 556,
554 P.2d 735, 738 (1976). Despite gruesomeness, photographic evidence has been held admissible when it
accurately shows the scene of the crime or when utilized to show the cause of death and when it reflects the
severity of wounds and the manner of their infliction. Theriault v. State, 92 Nev. 185, 193, 547 P.2d 668, 674
(1976) (citations omitted), overruled on other grounds by Alford v. State, 111 Nev. 1409, 1415 n.4, 906 P.2d
714, 717 n.4 (1995).
We conclude that the district court's decision to admit this evidence was not manifestly wrong.
IV. The district court's refusal to allow defense counsel to question a state's witness regarding her conversation
with prosecutors
At the first trial, the State called Jennifer Green as a witness. On cross-examination, she testified that she
had spoken to prosecutors before the trial and they had told her that they did not believe Smith was as innocent
as he was saying. The State objected to the statement as hearsay, and the district court overruled the
objection.
ruled the objection. Green testified again at the second trial, but this time the district court sustained the State's
objection when Williams's counsel asked her what prosecutors had said about Smith.
Byford contends that the district court erred in the second trial. He argues that the ruling in the first trial was
the law of the case because the State did not appeal the ruling. He also argues that the evidence was not hearsay
because it was offered not for its truth but to show the effect it had on the witness.
[Headnote 25]
First, a trial court ruling does not constitute law of the case. The law of a first appeal is the law of the case
on all subsequent appeals in which the facts are substantially the same. Walker v. State, 85 Nev. 337, 343, 455
P.2d 34, 38 (1969) (emphasis added), vacated in part on other grounds by 408 U.S. 935 (1972). This court did
not adjudicate this issue in the first appeal so no law of the case exists in regard to it.
[Headnote 26]
Second, evidence that a statement was made and the listener was affected by the statement is not hearsay if
not offered to show the truth of the statement. See Wallach v. State, 106 Nev. 470, 473, 796 P.2d 224, 227
(1990). However, Byford fails to show here how any effect on the witness was relevant. He does not claim that
evidence of the prosecutor's statement was necessary to provide context for any action by the witnessthe usual
basis for such evidence. See id. He argues that it was relevant to show a possible effect on the witness's
testimony, but does not explain what that effect was or how it was relevant.
The decision to admit or exclude evidence is within the sound discretion of the district court. Johnson v.
State, 113 Nev. 772, 776, 942 P.2d 167, 170 (1997). We conclude that it was within the district court's sound
discretion to exclude this evidence.
V. The instruction on implied malice and the antisympathy instruction
[Headnote 27]
Pursuant to NRS 200.020(2), the jury was instructed: Malice shall be implied when no considerable
provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.
(Emphasis added.) Byford contends that the emphasized language creates a mandatory presumption, which is
unconstitutional. We have held that this instruction is proper if the jury is properly instructed on the presumption
of innocence. See Doyle v. State, 112 Nev. 879, 900-02, 921 P.2d 901, 915-16 (1996). The jury received such
instruction here.
[Headnote 28]
The jury also received a so-called antisympathy instruction, which Byford contends undermined his right
to have the jury consider all mitigating evidence. This court has rejected this contention where the jury was also
instructed to consider any mitigating factors. See Wesley v. State, 112 Nev. 503, 519, 916 P.2d 793, 803-04
(1996). The jury was so instructed here.
We conclude that these instructions were proper.
VI. The instructions defining the mens rea required for first degree murder
[Headnote 29]
The jury in this case was instructed:
Premeditation is a design, a determination to kill, distinctly formed in the mind at any moment before
or at the time of the killing.
Premeditation need not be for a day, an hour or even a minute. It may be as instantaneous as
successive thoughts of the mind. For if the jury believes from the evidence that the act constituting the
killing has been preceded by and has been the result of premeditation, no matter how rapidly the
premeditation is followed by the act constituting the killing, it is willful, deliberate and premeditated
murder.
We will refer to this as the Kazalyn instruction because it first appears in this court's case law in Kazalyn v.
State, 108 Nev. 67, 75, 825 P.2d 578, 583 (1992).
Byford argues that this instruction is improper because it mandates a finding of willful, deliberate, and
premeditated murder based only on the existence of premeditation. Although we reject this argument as a basis
for any relief for Byford, we recognize that it raises a legitimate concern which this court should address.
We conclude that the evidence in this case is clearly sufficient to establish deliberation and premeditation on
Byford's part. Byford and Williams had talked of get[ting] rid of the victim on prior occasions. On the night of
the murder, Byford handed the gun to Williams, saying that he (Byford) couldn't do it, and told Smith to stay
out of it. Thus, it is evident that Byford and Williams discussed shooting the victim before doing so. Williams
and Byford then calmly and dispassionately shot the victim in the absence of any provocation, confrontation, or
stressful circumstances of any kind. Williams first shot her several times and then, after a passage of some time,
shot her several more times. Byford watched this transpire, and when the victim was helpless on the ground, he
took the gun from Williams, said that he would make sure she was dead, and shot her in the head twice. This
evidence was sufficient for the jurors to reasonably find that before acting to kill the victim
Byford weighed the reasons for and against his action, considered its consequences,
distinctly formed a desing to kill, and did not act simply from a rash, unconsidered
impulse.
was sufficient for the jurors to reasonably find that before acting to kill the victim Byford weighed the reasons
for and against his action, considered its consequences, distinctly formed a design to kill, and did not act simply
from a rash, unconsidered impulse. See Briano v. State, 94 Nev. 422, 425, 581 P.2d 5, 7 (1978) (evidence of
premeditation and deliberation is seldom direct, and circumstantial evidence may be taken into account to
provide sufficient evidence).
The Kazalyn instruction, however, does raise a concern which we will now consider.
[Headnote 30]
NRS 200.030(1)(a) provides in relevant part that murder perpetrated by willful, deliberate and premeditated
killing is first degree murder. In this regard, willful means intentional. See State v. Brown, 836 S.W.2d 530,
538 (Tenn. 1992). Therefore, willful first-degree murder requires that the killer actually intend to kill. Cf. Wayne
R. LaFave & Austin W. Scott, Jr., Criminal Law 7.7, at 642 (2d ed. 1986). Not every murder requires an intent
to kill. For example, murder can also exist when a killer acts with a reckless disregard for human life amounting
to an abandoned and malignant heart. See NRS 200.020(2); cf. Model Penal Code and Commentaries 210.2
cmt. 1 at 13-15 (Official Draft and Revised Comments 1980); LaFave & Scott, Criminal Law, 7.1(a), at
605-07. However, such a murder would not constitute willful first-degree murder.
[Headnote 31]
In addition to willfulness, the statutory provision in question requires deliberation and premeditation. These
are the truly distinguishing elements of first-degree murder under this provision. Cf. Brown, 836 S.W.2d at 538.
But the jurisprudence of Nevada, like that of other states, has shown a trend toward a confusion of
premeditation and deliberation. Id. at 540. We therefore take this opportunity to adhere to long-established
rules of law and . . . abandon the modern tendency to muddle the line between first- and second-degree murder.
Id. at 543.
The Kazalyn instruction and some of this court's prior opinions have underemphasized the element of
deliberation. The neglect of deliberate as an independent element of the mens rea for first degree murder
seems to be a rather recent phenomenon. Before Kazalyn, it appears that deliberate and premeditated were
both included in jury instructions without being individually defined but also without deliberate being reduced
to a synonym of premeditated. See, e.g., State of Nevada v. Harris, 12 Nev. 414, 416 (1877); State v. Scott, 92
Nev. 552, 554 n.2, 554 P.2d 735, 737 n.2 (1976). We did not address this issue in our Kazalyn decision,
decision, but later the same year, this court expressly approved the Kazalyn instruction, concluding that
deliberate is simply redundant to premeditated and therefore requires no discrete definition. See Powell v.
State, 108 Nev. 700, 708-10, 838 P.2d 921, 926-27 (1992), vacated on other grounds by 511 U.S. 79 (1994).
Citing Powell, this court went so far as to state that the terms premeditated, deliberate and willful are a single
phrase, meaning simply that the actor intended to commit the act and intended death as the result of the act.
Greene v. State, 113 Nev. 157, 168, 931 P.2d 54, 61 (1997).
We conclude that this line of authority should be abandoned. By defining only premeditation and failing to
provide deliberation with any independent definition, the Kazalyn instruction blurs the distinction between first-
and second-degree murder. Greene's further reduction of premeditation and deliberation to simply intent
unacceptably carries this blurring to a complete erasure.
[Headnote 32]
We acknowledge that the jurisprudence of this court on this issue has not been consistent, but in Powell we
overlooked earlier pronouncements of this court which recognized that deliberate and premeditated define
distinct elements. In Hern v. State, 97 Nev. 529, 532, 635 P.2d 278, 280 (1981), this court stated: It is clear
from the statute that all three elements, willfulness, deliberation, and premeditation, must be proven beyond a
reasonable doubt before an accused can be convicted of first degree murder. (Emphasis added.) See also State
v. Wong Fun, 22 Nev. 336, 341, 40 P. 95, 96 (1895). But see State of Nevada v. Lopez, 15 Nev. 407, 414
(1880).
[Headnotes 33, 34]
In sum, the Kazalyn instruction and Powell and its progeny do not do full justice to the phrase willful,
deliberate, and premeditated. Deliberation remains a critical element of the mens rea necessary for first-degree
murder, connoting a dispassionate weighing process and consideration of consequences before acting. In order
to establish first-degree murder, the premeditated killing must also have been done deliberately, that is, with
coolness and reflection. Brown, 836 S.W.2d at 539; see also LaFave & Scott, Criminal Law 7.7(a), at 643.
[Headnote 35]
Because deliberation is a distinct element of mens rea for first-degree murder, we direct the district courts to
cease instructing juries that a killing resulting from premeditation is willful, deliberate, and premeditated
murder. Further, if a jury is instructed separately on the meaning of premeditation, it should
also be instructed on the meaning of deliberation.
instructed separately on the meaning of premeditation, it should also be instructed on the meaning of
deliberation.
3

[Headnotes 36, 37]
Accordingly, we set forth the following instructions for use by the district courts in cases where defendants
are charged with first-degree murder based on willful, deliberate, and premeditated killing.
Murder of the first degree is murder which is perpetrated by means of any kind of willful, deliberate,
and premeditated killing. All three elementswillfulness, deliberation, and premeditationmust be
proven beyond a reasonable doubt before an accused can be convicted of first-degree murder.
Willfulness is the intent to kill. There need be no appreciable space of time between formation of the
intent to kill and the act of killing.
Deliberation is the process of determining upon a course of action to kill as a result of thought,
including weighing the reasons for and against the action and considering the consequences of the action.
A deliberate determination may be arrived at in a short period of time. But in all cases the
determination must not be formed in passion, or if formed in passion, it must be carried out after there
has been time for the passion to subside and deliberation to occur. A mere unconsidered and rash impulse
is not deliberate, even though it includes the intent to kill.
[4]

__________

3
Instructions defining deliberation and premeditation are not even required. See Ogden v. State, 96 Nev. 258,
263, 607 P.2d 576, 579 (1980); cf. Dawes v. State, 110 Nev. 1141, 1145-46, 881 P.2d 670, 673 (1994). There
is nothing to indicate that such words are used in law other than in their ordinary sense. Ogden, 96 Nev. at 263,
607 P.2d at 579.

4
A homicide arising from an impulse of passion can be either second-degree murder or voluntary
manslaughter depending on the circumstances. Voluntary manslaughter requires a serious and highly provoking
injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an
attempt by the person killed to commit a serious personal injury on the person killing. NRS 200.050; see also
NRS 200.040 and 200.060. If jurors find that a defendant killed the deceased under the influence of
uncontrollable passion, and without any mixture of deliberation, and if at the same time they [think] that the
circumstances were not such as to justify the existence or persistence of irresistible passion in a reasonable
man, then a verdict of second-degree murder is warranted. State of Nevada v. Ah Mook, 12 Nev. 369, 386-87
(1877). Neither slight provocation nor an assault of a trivial nature will reduce a homicide from murder to
manslaughter. State v. Fisko, 58 Nev. 65, 75, 70 P.2d 1113, 1116 (1937), overruled in part on other grounds
by Fox v. State, 73 Nev. 241, 247, 316 P.2d 924, 927 (1957).
Premeditation is a design, a determination to kill, distinctly formed in the mind by the time of the
killing.
Premeditation need not be for a day, an hour, or even a minute. It may be as instantaneous as
killing has been preceded by and has been the result of premeditation, no matter how rapidly the act
follows the premeditation, it is premeditated.
The law does not undertake to measure in units of time the length of the period during which the
thought must be pondered before it can ripen into an intent to kill which is truly deliberate and
premeditated. The time will vary with different individuals and under varying circumstances.
The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated
judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash
impulse, even though it includes an intent to kill, is not deliberation and premeditation as will fix an
unlawful killing as murder of the first degree.
VII. The district court's refusal of a proposed instruction on mitigating circumstances
During the settling of penalty phase jury instructions, Byford objected to the district court's instruction on
mitigators and offered his own instruction setting forth the mitigating circumstances which he alleged existed in
his case. The court rejected the proposed instruction. (The rejected instruction does not appear in the record.)
The jury was simply instructed in regard to six of the seven mitigators enumerated in NRS 200.035, including
the general one: Any other mitigating circumstances.
Byford contends that the district court erred. He argues that a defendant has a right to instruct the jury on
his defense theory as long as there is some evidence, no matter how weak or incredible, to support it.
5
See,
e.g., Williams v. State, 99 Nev. 530, 665 P.2d 260 (1983).
[Headnote 38]
It is possible that the district court erred in disallowing Byford's proposed instruction. NRS 175.554(1)
provides that in a capital penalty hearing before a jury, the court shall instruct the jury on the relevant
aggravating circumstances and shall also instruct the jury as to the mitigating circumstances alleged
by the defense upon which evidence has been presented during the trial or at the
hearing."
__________

5
Byford also asserts that it is unconstitutional to prevent a sentencing jury from considering any mitigating
evidence proffered by the defendant. See, e.g., Lockett v. Ohio, 438 U.S. 586, 602-08 (1978). This is a correct
statement of the law, but Byford has not shown that the jury was precluded from considering any evidence
offered in mitigation.
jury as to the mitigating circumstances alleged by the defense upon which evidence has been presented during
the trial or at the hearing. NRS 175.554(1) therefore requires instructions on alleged mitigators upon which
evidence has been presented and does not restrict such instructions to the enumerated statutory mitigators.
Therefore, Byford was entitled to appropriate jury instructions on unenumerated mitigating circumstances for
which he had presented evidence.
[Headnotes 39, 40]
However, Byford has not provided this court with the contents of his proposed instruction, so we cannot
ascertain whether the specific instruction at issue was proper or not. It is the appellant's responsibility to
provide the materials necessary for this court's review. Jacobs v. State, 91 Nev. 155, 158, 532 P.2d 1034, 1036
(1975). Furthermore, Byford did not cite NRS 175.554(1) to the district court as grounds for his proposed
instruction. Therefore, he did not properly preserve this issue for appeal. See Lizotte v. State, 102 Nev. 238,
239-40, 720 P.2d 1212, 1214 (1986) (appellate review requires that the district court be given a chance to rule
on the legal and constitutional questions involved).
[Headnotes 41, 42]
Even assuming that rejecting the proposed instruction was error, we do not deem it plain or constitutional
error. The United States Supreme Court has held that the absence of instructions on particular mitigating factors
does not violate the Eighth and Fourteenth Amendments. Buchanan v. Angelone, 522 U.S. 269, 275, 118 S. Ct.
757, 761 (1998). Byford was able to present his theories of mitigation to the jury in closing argument. Nothing
precluded the jury from considering that argument and any evidence presented in mitigation. Thus, we are
confident that no error requiring reversal occurred.
VIII. The penalty instructions regarding the use of character evidence
[Headnote 43]
During the penalty phase the State presented general character evidence against Byford in addition to
evidence on the two alleged aggravating circumstances. Before the penalty hearing began, Williams and Byford
unsuccessfully moved for a bifurcated proceeding at which the character evidence would not be introduced
unless and until the jury had found aggravating circumstances to exist. Byford claims that the jury was never
instructed that the character evidence could not be used in the weighing process to determine death
eligibility. The record belies this claim.
The jury was instructed:
The jury may impose a sentence of death only if:
(1) The jurors find unanimously and beyond a reasonable doubt that at least one aggravating
circumstance exists;
(2) Each and every juror determines that the mitigating circumstance or circumstances, if any,
which he or she has found do not outweigh the aggravating circumstance or circumstances; and
(3) The jurors unanimously determine that in their discretion a sentence of death is appropriate.
This instruction is proper. See Geary v. State, 114 Nev. 100, 105, 952 P.2d 431, 433 (1998). The jury was
further instructed that the State had alleged two aggravating circumstances against Byford and that
[o]ther arrests, conduct or bad acts, if any, committed by . . . Byford are to be considered for character
only and not as aggravating circumstances.
Evidence of any uncharged crimes, bad acts or character evidence cannot be used or considered in
determining the existence of the alleged aggravating circumstance or circumstances.
These instructions properly inform jurors that in deciding whether to impose a death sentence, they may not
consider general character evidence until they have determined that a defendant is eligible for the death penalty
by finding: first, that at least one aggravator exists; and second, that any aggravators are not outweighed by any
mitigators. See Middleton v. State, 114 Nev. 1089, 1117, 968 P.2d 296, 315 (1998), cert. denied, 528 U.S. 927
(1999).
Byford criticizes Lisle, 113 Nev. at 704, 941 P.2d at 475-76, but does not show how the criticism applies to
this case. This court has stated: To the extent that any language in Lisle suggests that [character evidence
admitted pursuant to NRS 175.552(3)] can be used to determine death eligibility itself, we hereby reject that
suggestion. Middleton, 114 Nev. at 1117 n.9, 968 P.2d at 315 n.9. The instructions here made no such
suggestion.
IX. The aggravating circumstance of torture or mutilation
[Headnote 44]
Byford asserts that the decisions in which this court has considered the aggravating circumstance of torture
or mutilation are inconsistent and irreconcilable, rendering this aggravator unconstitutionally vague. He also
maintains that the victim was simply killed by multiple gunshots and that there was no evidence
of torture or mutilation.
killed by multiple gunshots and that there was no evidence of torture or mutilation. We disagree. Regardless of
whether there is any inconsistency in this court's decisions regarding this aggravating circumstance, we conclude
that Byford has failed to show that the aggravator was found unconstitutionally in this case. The jury instructions
defining torture and mutilation in this case were ones which we have determined are not unconstitutionally
vague. See Browne v. State, 113 Nev. 305, 315-16, 933 P.2d 187, 193 (1997); Robins v. State, 106 Nev. 611,
627-30, 798 P.2d 558, 568-70 (1990). And the evidence was sufficient to establish that this murder involved
torture and mutilation.
NRS 200.033(8) provides as an aggravating circumstance that [t]he murder involved torture or the
mutilation of the victim. Establishing either torture or mutilation is sufficient to support the jury's finding of this
aggravating circumstance. See Parker v. State, 109 Nev. 383, 395, 849 P.2d 1062, 1070 (1993).
In discussing torture, we have held that NRS 200.033(8) requires that the murderer must have intended to
inflict pain beyond the killing itself. Domingues v. State, 112 Nev. 683, 702, 917 P.2d 1364, 1377 (1996). In
Domingues, the evidence did not indicate that the appellant's intent was anything other than to kill the victim;
there was no evidence that the specific intent behind the attempted electrocution or the stabbing was to inflict
pain for pain's sake or for punishment or sadistic pleasure. Id. Torture involves a calculated intent to inflict
pain for revenge, extortion, persuasion or for any sadistic purpose. Id. at 702 n.6, 917 P.2d at 1377 n.6.
In maintaining that no evidence of torture exists here, Byford ignores the circumstances of the killing.
Evidence indicated that Byford and Williams resented Wilkins because of perceived slights they had received
from her. Thus revenge of a sort appears to have been their primary reason for shooting her. After shooting her
in the back, Williams lied to Wilkinswho was under the influence of LSDdenying that he had shot her and
telling her that he had only shot around her. When she realized she had been shot and asked why, he said
because she was a bitch and then walked behind her and shot her again repeatedly. We conclude that the jury
could have reasonably found that this behavior had a vengeful, sadistic purpose and was intended to inflict pain
beyond the killing itself and therefore constituted torture. Byford, of course, was equally culpable of this torture:
a person who aids and abets an act constituting an offense is a principal and subject to the same punishment as
one who directly commits the act. See NRS 195.020.
[Headnote 45]
This court has never expressly decided whether postmortem mutilation falls within the purview of
NRS 200.033{S).
mutilation falls within the purview of NRS 200.033(8). Basing aggravating circumstances on the actions of the
murderer following the victim's death is proper. See Lewis v. Jeffers, 497 U.S. 764, 783-84 (1990) (concluding
that the state court's finding of the aggravating circumstance of gratuitous violence was rationally supported by
evidence that the defendant inflicted additional wounds on the dead victim); Conklin v. State, 331 S.E.2d 532,
539 (Ga. 1985) (rejecting the argument that murder terminates at the instant of death, so that nothing that
happens afterward can be considered in determining whether an aggravator exists).
In Flanagan v. State, 105 Nev. 135, 141, 771 P.2d 588, 592 (1989), this court declined to decide if
dismemberment of a corpse is mutilation within the meaning of the statute. In another case, we also did not reach
the issue, but stated that postmortem amputations of the victim's body showed depravity of mind (a former
aggravator). See Cavanaugh v. State, 102 Nev. 478, 487, 729 P.2d 481, 486 (1986). In at least two other cases,
without discussing this issue, we noted attacks inflicted on victims after their death as additional evidence of
mutilation. Calambro v. State, 114 Nev. 106, 111, 952 P.2d 946, 949 (1998) (After driving the bar through the
skull, appellant attempted to separate the victim's skull in half.); Parker, 109 Nev. at 395, 849 P.2d at 1070 (the
murderer plunged a knife into the dead victim's chest).
[Headnote 46]
Our case law thus tends to support the conclusion that the aggravating circumstance set forth in NRS
200.033(8) includes postmortem mutilation. More important, this conclusion is consistent with the statutory
language. Although a victim who has died cannot be tortured, mutilation can occur after death. By including
both terms as a basis for the aggravator, the statute penalizes egregious behavior whether it occurs before or after
a victim's death. We agree with the State's assertion that the legislative intent in making mutilation an
aggravating circumstance was to discourage the desecration of a fellow human being's body. We therefore take
this opportunity to expressly hold that mutilation, whether it occurs before or after a victim's death, is an
aggravating circumstance under NRS 200.033(8).
Postmortem mutilation occurred here when Byford set the body on fire. See Ortiz v. Stewart, 149 F.3d 923,
942 (9th Cir. 1998), cert. denied, 526 U.S. 1123 (1999). Therefore, the evidence in this case supports a finding
of both torture and mutilation.
X. Cumulative error
[Headnote 47]
Although individual errors may be harmless, the cumulative effect of multiple errors may violate a
defendant's constitutional right to a fair trial.
effect of multiple errors may violate a defendant's constitutional right to a fair trial. Pertgen v. State, 110 Nev.
554, 566, 875 P.2d 361, 368 (1994). Byford argues that such a cumulative effect exists here.
We have concluded that two errors occurred: improper references were made to Byford's prior criminal
activity, and the prosecutor improperly implied that Byford had the burden of calling a witness. Also, the district
court possibly erred in disallowing Byford's proposed instruction on mitigating circumstances. Even considered
cumulatively, these errors were harmless.
XI. Review of the death sentence under NRS 177.055
NRS 177.055(2), in part, requires this court to review:
(c) Whether the sentence of death was imposed under the influence of passion, prejudice or any
arbitrary factor; and
(d) Whether the sentence of death is excessive, considering both the crime and the defendant.
[Headnote 48]
Byford contends that his death sentence is excessive, arguing as follows. Smith's testimony was the State's
primary evidence of the murder, and that testimony showed that Williams was more culpable in murdering
Wilkins. The penalty hearing evidence also showed that Williams had caused a great deal of trouble while in
prison between the first and second trials. Byford asserts that he has been an exemplary prisoner during his
years of imprisonment and was only twenty at the time of the murder. Yet he was sentenced to death while
Williams received a sentence less than death.
The record indeed shows that Williams took the initiative in murdering Wilkins and has caused worse
disciplinary problems as an inmate. But Byford overlooks the fact that his criminal record prior to the murder
was worse than Williams's. Because Byford was on probation at the time of the murder, the jury found an
additional aggravating circumstance in his case, for a total of two, versus one for Williams. And the jury found
only one mitigating circumstance in Byford's case, versus six for Williams. One was Williams's youth: he was
younger than Byford, only seventeen, at the time of the murder. Finally, the evidence showed that Byford fired
two fatal shots into the victim's head when she was completely helpless, threatened to kill Smith if he told, and
took the initiative in concealing the crime. Thus, Byford's culpability in the murder was comparable to
Williams's.
We conclude that Byford's death sentence is not excessive and that there is no evidence it was imposed
under the influence of passion, prejudice, or any arbitrary factor.
CONCLUSION
We affirm Byford's conviction and sentence of death.
Rose, C. J., Young, Agosti, Leavitt and Becker, JJ., concur.
Maupin, J., concurring:
The jury in this case was instructed in the following manner:
Premeditation is a design, a determination to kill, distinctly formed in the mind at any moment before
or at the time of the killing.
murder.
As noted by the majority, this instruction mirrors our observations in Kazalyn v. State, 108 Nev. 67, 75, 825
P.2d 578, 583 (1992). I write separately to offer an alternative approach to the concern that the line between
first- and second-degree murder has arguably been blurred by Kazalyn and other opinions of this court
discussing premeditation as a separate element of first-degree murder.
DISCUSSION
NRS 200.010 defines murder in relevant part as the unlawful killing of a human being, with malice
aforethought, either express or implied . . . . Once it has been established that a murder has been committed,
that is an unlawful killing with malice aforethought, the offense must then be classified by degree. See Graham
v. State, 116 Nev. 23, 992 P.2d 255 (2000).
Under NRS 200.030(1)(a), (b) and (c), the specifically enumerated homicides definitionally constitute
murder in the first degree.
1
Id. The only subcategory of first-degree murder where first-degree murder is not
self-defined is the broad general category of murders not specifically enumerated, i.e., the other kind[s] of
willful, deliberate and premeditated killing," referred to in the second phrase of NRS
200.030{1){a).
__________

1
Murders committed by means of poison, lying in wait, torture or child abuse; murders committed in the
commission of certain enumerated life-endangering felonies (the felony-murder rule); and murders committed to
avoid lawful arrest or to escape from legal custody. NRS 200.030 (1)(a), (b) and (c). (The 1999 legislature
amended NRS 200.030, transferring murders perpetrated by child abuse into the felony-murder subcategory of
first-degree murder. 1999 Nev. Stat., ch. 319, 3, at 1335.) Felony-murder is the only category of murder where
malice is statutorily presumed.
kind[s] of willful, deliberate and premeditated killing, referred to in the second phrase of NRS 200.030(1)(a). It
is therefore the second phrase of NRS 200.030(1)(a) that provides the first line of departure in the analysis of
whether a particular fact pattern falls within the first-degree murder construct or within the second-degree
murder construct. See State v. Randolph, 49 Nev. 241, 246-47, 242 P. 697, 698 (1926); Graham, 116 Nev. at
28, 992 P.2d at 258 (2000).
The Kazalyn instruction invites concern when it defines premeditation as a determination to kill
2
because
express malice means a deliberate intention to kill (see NRS 200.020(1); Keys v. State, 104 Nev. 736, 740, 766
P.2d 270, 272 (1988)), and, by definition, an intention is a determination to act in a certain way. See
Webster's Ninth New Collegiate Dictionary 629 (1985). Indeed, there is very little distinction between
premeditation and malice aforethought, and therefore first- and second-degree murder, when we define
premeditation in terms of a determination to kill and malice aforethought as an intention to kill.
3

My second concern arises from our decisional law discussing the three elements set forth in the second
phrase of NRS 200.030(1)(a). In Hern v. State, 97 Nev. 529, 635 P.2d 278 (1981), we concluded that all three
elements, willfulness, deliberation, and premeditation, must be proven beyond a reasonable doubt before an
accused can be convicted of first degree murder. Id. at 532, 635 P.2d at 280 (emphasis added). One could fairly
deduce from this declaration that deliberation and premeditation are not synonymous and each must be
proven separately.
__________

2
The specific language of the Kazalyn instruction is that premeditation is a design, a determination to kill.
Kazalyn, 108 Nev. at 75, 825 P.2d at 583. The language arguably implies that a design and a determination are
one and the same. Thus, the discourse in which we are engaged has become necessary. This having been said,
use of the Kazalyn instruction does not warrant reversal of any prior convictions rendered in this State. This is
because the use of the term design, regardless of the potential ambiguity, is sufficient to convey a distinction
between malice and either deliberation or premeditation, especially where, as here, there is substantial evidence
to support findings of deliberation and premeditation as either the majority or this concurrence have defined
these terms.

3
This court has previously concluded that the terms deliberate, premeditated, and willful, as used in
defining first-degree murder, connote the same general ideathe intention to kill (see Powell v. State, 108
Nev. 700, 709, 838 P.2d 921, 922 (1992), vacated on other grounds, 511 U.S. 79 (1994)), notwithstanding the
fact that we have previously declared that [m]alice is not synonymous with either deliberation or
premeditation. Hern v. State, 97 Nev. 529, 532, 635 P.2d 278, 280 (1981); see also Greene v. State, 113 Nev.
157, 168, 931 P.2d 54, 61 (1997) ([T]he terms premeditated, deliberate and willful are a single phrase, meaning
simply that the actor intended to commit the act and intended death as the result of the act.).
are not synonymous and each must be proven separately.
4
In Powell v. State, 108 Nev. 700, 838 P.2d 921
(1992), however, we noted:
In [DePasquale v. State, 106 Nev. 843, 803 P.2d 218 (1990), cert. denied, 502 U.S. 829 (1991)], as in
[Briano v. State, 94 Nev. 422, 581 P.2d 5 (1978)], we used the terms premeditated and deliberate as a
single term.
Other jurisdictions have held that the terms deliberate, premeditate and willful are a single phrase,
meaning simply that the actor intended to commit the act and intended death to result. . . .
. . . .
We have set forth the requirement for premeditation in [Briano], where we stated [T]he state must
prove that a design to kill was distinctly and rationally formed in the mind of the perpetrator, at or before
the time the fatal blows were struck. . . . [I]t [does not] matter how short a time existed between the
formation of the design to kill and the killing itself. As long as the instruction on premeditation which is
given to the jury comports with Briano, it is not necessary to separately define deliberateness or
willfulness.
Id. at 709-10, 838 P.2d at 927 (quoting Briano, 94 Nev. at 425, 581 P.2d at 7) (citations omitted); see also
Williams v. State, 113 Nev. 1008, 1017, 945 P.2d 438, 443 (1997) (affirming Powell); Doyle v. State, 112 Nev.
879, 900, 921 P.2d 901, 915 (1996) (affirming Powell); Witter v. State, 112 Nev. 908, 918, 921 P.2d 886, 893
(1996) (in affirming Powell, expressly concluding that a jury instruction identical to the one given in Byford's
case gave the jury an accurate definition of premeditation and deliberation, and, therefore, that it was
unnecessary to provide an additional instruction defining deliberation). Thus, whether deliberation and
premeditation must be proven separately, or whether they refer to the same reflective process whereby proof of
one necessarily proves the presence of the other, has become uncertain.
Accordingly, a majority of this court has concluded that some clarification of our murder jurisprudence is
needed. First, because express malice means a deliberate intention to kill (see 200.020(1); Keys, 104 Nev. at
740, 766 P.2d at 272), and because a willful killing means one that is intentional (see Webster's Ninth New
Collegiate Dictionary 1350 (1985) (defining willful as done deliberately: Intentional)), the statutory
requirement of NRS 200.030(1)(a) that other first-degree murders must be perpetrated willfully is merely a
reiteration of the fact that express malice is always an element of this subcategory of first-degree
murder.
__________

4
Compare State v. Brown, 836 S.W.2d 530, 539 (Tenn. 1992) (In order to establish first-degree murder, the
premeditated killing must also have been done deliberately, that is, with coolness and reflection.).
malice is always an element of this subcategory of first-degree murder. Thus, if the State can only prove that the
killing was done willfully and unlawfully, but cannot separately prove premeditation, the defendant is guilty of
second-degree murder.
Secondly, given the synonymous nature of express malice and willfulness as used in our murder
jurisprudence, it is the presence of premeditation and deliberation that distinguishes first-degree murder from
second-degree murder. We have previously concluded that [t]here is nothing to indicate that [premeditated
and deliberate] are used in law other than in their ordinary sense. Ogden v. State, 96 Nev. 258, 263, 607 P.2d
576, 579 (1980) (citing People v. Anderson, 447 P.2d 942, 948 (Cal. 1968) (recognizing that the California
Legislature did not intend to give deliberate and premeditated meaning other than their ordinary dictionary
meanings)). Therefore, because the word premeditate is defined as to think, consider, or deliberate
beforehand (see Webster's Ninth New Collegiate Dictionary 928 (1985) (emphasis added)), I have concluded
that there is no meaningful or appreciable difference between premeditation and deliberation. In doing so, I
would not completely disavow this court's previous conclusion in Hern that all three elementswillfulness,
deliberation, and premeditation must be present in order to prove first-degree murder. Rather, I would simply
reject any implication that premeditation and deliberation must be proven as separate and distinct concepts, and
conclude that proof of premeditation will also suffice as proof of deliberation,
5
and vice versa.
Thirdly, premeditation is not merely an intention or determination to kill. The terms willful, deliberate,
and premeditated do not connote the same general idea of an intention to kill.
6
Our acceptance of as much
obscures the distinction between murders of the first and second degree because it renders premeditation
synonymous with one form of malice aforethought. All three terms (willfulness, deliberation and premeditation)
involve intention but, as noted above, only willfulness exclusively connotes an intention to kill. As terms of
art, separate and apart from willfulness, premeditation and deliberation additionally refer to actual
reflection that occurs for any length of time prior to that instant when an individual is in
possession of a determination or intention to kill.
__________

5
The second phrase of NRS 200.030(1)(a) uses the words willful, deliberate and premeditated. Our cases
have treated the word deliberate as meaning deliberation. As noted, I believe that deliberation as an element
is subsumed within the process of premeditation. However, if the word deliberate does not mean deliberated or
deliberation, but means to do on purpose, the term is simply a synonym for willfulness. Thus, the term
deliberate does not as a practical matter affect the distinction between murders of the first and second degree.

6
I would clarify Powell and its progeny to the extent that they conclude the contrary.
actual reflection that occurs for any length of time prior to that instant when an individual is in possession of a
determination or intention to kill.
7
That this period of reflection may be as instantaneous as successive
thoughts of the mind is of no consequence, as such language merely instructs that the amount of time one
spends premeditating and deliberating is irrelevant. Indeed, the true test is not the duration of time as much as it
is the extent and quality of the reflection.
8

Thus, what matters is that there is a period of time during which the mind actually thinks upon or considers
the act (i.e., premeditates and deliberates). The end result is the formation of an intention or determination to kill
and an act resulting in the death of another. If this sequence occurs, the crime is first-degree murder.
9
If the
defendant has not had time to think upon or consider the act (i.e., has not premeditated and deliberated), but has
intentionally killed another as the instant effect of impulse, the crime is arguably second-degree murder.
10

__________

7
As we stated in Payne v. State, 81 Nev. 503, 508-09, 406 P.2d 922, 925-26 (1965):
To make a killing deliberate[d] as well as premeditated, it is unnecessary that the intention to kill shall
have been entertained for any considerable length of time. It is enough if there is time for the mind to
think upon or consider the act, and then determine to do it. If, therefore, the killing is not the instant effect
of impulseif there is hesitation or doubt to be overcome, a choice made as the result of thought,
however short the struggle between the intention and the actit is sufficient to characterize the crime as
deliberate and premeditated murder.
(Citation omitted.)

8
The court in State v. Ramirez, 945 P.2d 376, 380 (Ariz. 1997) stated:
We conclude that the first degree murder statute has never been aimed at those who had time to reflect
but did not; it has always been aimed at those who actually reflectedand then murdered.
If the difference between first and second degree murder is to be maintained, premeditation has to be
understood as reflection. It is fair to talk of the period of time in which reflection might occur; but it is
not fair to define reflection as the period of time in which it might occur. To have meaning, the element
of premeditation must describe something that defendant actually does. Just as murder requires actual
killing, premeditation requires actual reflection.

9
See Briano v. State, 94 Nev. 422, 425, 581 P.2d 5, 7 (1978) (evidence of premeditation and deliberation is
seldom direct, and circumstantial evidence may be taken into account to provide sufficient evidence).

10
This does not override the fact that our statutes define voluntary manslaughter as an unlawful killing that
occurs upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion
irresistible (i.e., a serious and highly provoking injury). NRS 200.040(2); NRS 200.050. Indeed, as we noted
in State v. Salgado, 38 Nev. 413, 416-17, 150 P. 764, 765 (1915) (quoting Francis Wharton, Law of Homicide
163 (3d ed. 1907)):
[a]uthority exists in support of the proposition that implied malice and
To effectuate these points of clarification, I would depart from the majority and suggest the following jury
instructions for use by the district courts in cases where defendants are charged with first-degree murder
pursuant to the second phrase of NRS 200.030(1)(a):
Murder is the unlawful killing of another with either express or implied malice aforethought.
Malice aforethought for these purposes is the intent to kill. An individual acts with express malice
when he or she unlawfully intends to kill another. Malice may be
11
implied to that individual when he or
she unlawfully kills without considerable provocation or when the circumstances of the killing show an
abandoned and malignant heart.
Murder of the first degree is the willful, deliberate, and premeditated killing of another in an unlawful
manner. All three elementswillfulness, deliberation, and premeditationmust be proven beyond a
reasonable doubt before an accused can be convicted of first-degree murder. In this con text, the term
"willful" has the same meaning as express malice.
__________
sudden passion may coexist, in which case the offense is not reduced to the grade of manslaughter. . . .
If malice existed, the crime is murder, and not manslaughter, though sudden passion coexisted and
the homicide was the product of both. . . . If the provocation is inconsiderable, the law implies malice,
and the homicide is murder; if it is great, malice will not be inferred, and it will be deemed to be
manslaughter.
See also State v. Fisko, 58 Nev. 65, 75, 70 P.2d 1113, 1116 (1937) (Neither slight provocation nor an assault of
a trivial nature will reduce a homicide from murder to manslaughter.).

11
NRS 200.020(2) provides that [m]alice shall be implied when no considerable provocation appears, or
when all the circumstances of the killing show an abandoned and malignant heart. (Emphasis added.) In Witter
v. State, 112 Nev. 908, 917, 921 P.2d 886, 895 (1996), cert. denied, 520 U.S. 1217 (1997), this court approved
an instruction stating that malice may be implied when no considerable provocation appears, or when all the
circumstances of the killing show an abandoned and malignant heart. Unfortunately, the court wrongly stated
that the exact language of the instruction used at trial in Witter had been approved in Guy v. State, 108 Nev. 770,
839 P.2d 578 (1992). This court also wrongly cited NRS 200.020(2) in support of its conclusion in this regard.
In point of fact, the implied malice instruction in Guy followed NRS 200.020(2), utilizing the statutory term
shall instead of may. Technically, a defendant in a murder prosecution is not entitled to the instruction
approved in Witter. Thus, to the extent Witter implies that may must be substituted for the statutory term
shall, it was decided in error. However, I would argue that it is not error to give the instruction approved in
Witter because the use of may instead of shall does not affect any due process rights. Further, the instruction
approved in Witter is preferable to the statutory instruction because it clearly eliminates the need to look to other
instructions to determine if the State's burden of proof has been properly articulated. See Doyle v. State, 112
Nev. 879, 900-02, 921 P.2d 901, 915 (1996).
text, the term willful has the same meaning as express malice. Therefore, proof that the killing was
done with malice aforethought is also proof that the killing was done willfully.
In determining whether the elements of willfulness, deliberation and premeditation have been satisfied
beyond a reasonable doubt, you must apply the ordinary meaning a reasonable person would apply to
these terms.
Premeditation and deliberation refer to the same thought process. They each refer to a period of actual
reflection that occurs prior to the formation of an intention to kill. Proof of premeditation is also proof of
deliberation, and vice versa.
Premeditation is therefore a design, a determination to kill, distinctly formed in the mind at any
moment before or at the time of the killing. Premeditation and deliberation need not be for a day, an hour
or even a minute. They may be a period of time that is as instantaneous as successive thoughts of the
mind. For, if the jury believes from the evidence that the act constituting the killing has been preceded by
a period of premeditation and deliberation that results in the formation of an intention to kill, no matter
how rapidly this period and formation of an intention to kill is followed by the act constituting the killing,
it is willful, deliberate and premeditated murder.
The majority notes that [d]eliberation remains a critical element of the mens rea necessary for first-degree
murder, connoting a dispassionate weighing process and consideration of consequences before acting, and that
[i]n order to establish first-degree murder, the premeditated killing must also have been done deliberately, that
is, with coolness and reflection. The majority relies on State v. Brown, 836 S.W.2d 530, 539 (Tenn. 1992) with
approval in support of this proposition. In my view, defining deliberation and premeditation in terms of an
elaborate weighing process or cold calculation may very well define many types of premeditated murder out of
existence and tacitly overrule our prior rulings on this issue in Williams and Witter. Further, although the
instruction proposed by the majority does not actually require coolness or cold calculation as a condition of
proof of deliberation or premeditation, the majority's language quoted above supported by the Tennessee
decision in Brown will arguably require that district courts, upon request, give special jury instructions defining
this category of first-degree murder in these terms.
As noted by the majority, the evidence in this case is clearly sufficient to establish willfulness, deliberation,
and premeditation on Byford's part. Thus, Byford's conviction should be sustained under the majority
analysis and the analysis in this separate concurrence.
under the majority analysis and the analysis in this separate concurrence.
As noted above,
12
the use of the Kazalyn instruction does not mandate reversal.
____________
116 Nev. 250, 250 (2000) Calloway v. City of Reno
CHARLES CALLOWAY and MARLENE IACOMETTI, on Behalf of Themselves and Other Property Owners
of HUFFAKER HILLS UNITS 3 AND 4 HOMEOWNERS' ASSOCIATION, Appellants, v. CITY OF
RENO, P & H CONSTRUCTION, INC., CLARENCE POEHLAND, JOHN CARL CONSTRUCTION
COMPANY, HIGHLAND CONSTRUCTION, INC., and OFFENHAUSER DEVELOPMENT
COMPANY, Respondents.
CITY OF RENO, Cross-Appellant, v. HIGHLAND CONSTRUCTION, INC., OFFENHAUSER AND OETJEN
CONSTRUCTION, INC., OFFENHAUSER DEVELOPMENT COMPANY, SPARKS ROOFING
AND SIDING SERVICE, INC., CHARLES CALLOWAY and MARLENE IACOMETTI on Behalf of
Themselves and Other Property Owners of HUFFAKER HILLS UNITS 3 AND 4 HOMEOWNERS'
ASSOCIATION, Cross-Respondents.
No. 25628
February 29, 2000 993 P.2d 1259
Appeal from district court orders granting summary judgment in a construction defects case. Second Judicial
District Court, Washoe County; James A. Stone, Judge.
Townhouse owners brought class action against developer and contractor, City, and subcontractors, alleging
claims of warranty, tort, and negligent inspection. Following settlement of owners' claims against developer and
contractor, the district court granted summary judgment for subcontractor, and for developer and contractor on
City's cross-claim for indemnity and contribution. Owners and City appealed. On rehearing, superseding its prior
opinion at 113 Nev. 564, 939 P.2d 1020 (1997), the supreme court, Young, J., held that: (1) economic loss
doctrine applies to construction defects cases; (2) damage to townhouses caused by allegedly defective framing
of integrated structures constituted damage to the structures themselves, such that owners suffered purely
economic losses for which the economic loss doctrine barred recovery; (3) overruling Charlie Brown
Construction Co. v. Boulder City, 106 Nev. 497,
__________

12
See note 2.
v. Boulder City, 106 Nev. 497, 797 P.2d 946 (1990), foreseeability of damages plays no role with respect to the
economic loss doctrine; (4) overruling Worrell v. Barnes, 87 Nev. 204, 484 P.2d 573 (1971), townhouses were
not products, for purposes of strict products liability; and (5) City was not an aggrieved party entitled to
appeal.
Affirmed on rehearing.
[Rehearing denied October 3, 2000]
Maupin, J., dissented in part. Rose, C. J., dissented.
Robert C. Maddox & Associates, Reno, for Appellants/Cross-Respondents Charles Calloway, Marlene
Iacometti, and other property owners of Huffaker Hills.
Lemons, Grundy & Eisenberg, Reno, for Respondent/Cross-Appellant City of Reno.
Beasley, Holden & Kern, Reno, for Respondents P & H Construction, Inc., Clarence Poehland and John Carl
Construction Company.
Erickson, Thorpe & Swainston, Ltd., and Thomas Beko, Reno, for Cross-Respondents Highland
Construction, Inc., and Offenhauser and Oetjen Construction, Inc.
Haefner & Enzenberger, Reno, for Cross-Respondent Offenhauser Development Company.
Mortimer, Sourwine, Mousel & Sloane, Ltd., Reno, for Cross-Respondent Sparks Roofing and Siding
Service, Inc.
Cecilia L. Rosenauer, Reno, for Amici Curiae Consulting Engineers Council of Nevada and Builders
Association of Northern Nevada.
Summary judgment is reviewed de novo.
On appeal from a summary judgment, supreme court may be required to determine whether the law has been correctly perceived
and applied by the district court.
3. Action.
In determining whether a claim sounds in contract or in tort, the pleadings and the alleged facts must be considered.
4. Contracts; Torts.
Breach of contract may be said to be a material failure of performance of a duty arising under or imposed by agreement, while a
"tort," on the other hand, is a violation of a duty imposed by law, a wrong independent of contract.
tort, on the other hand, is a violation of a duty imposed by law, a wrong independent of contract.
5. Torts.
In deciding whether a tort has been committed by a party to a contract, question to be determined is whether the actions or
omissions complained of constitute a violation of duties imposed by law, or of duties arising by virtue of the alleged express agreement
between the parties.
6. Negligence; Torts.
Economic loss doctrine serves to distinguish between tort, or duty-based recovery, and contract, or promise-based recovery, and
clarifies that economic losses cannot be recovered under a tort theory.
7. Products Liability; Sales.
Products liability plaintiff may not recover economic loss under theories of strict products liability or negligence, but purely
economic loss may be recovered under a breach of warranty theory.
8. Negligence; Products Liability.
Economic loss doctrine applies to construction defects cases. Damages sought, in tort, for economic losses from a defective
building are just as offensive to tort law as damages sought for economic losses stemming from a defective product.
9. Contracts.
Contract law is designed to enforce the expectancy interests created by agreement between the parties and seeks to enforce
standards of quality. This standard of quality must be defined by reference to that which the parties have agreed upon.
10. Torts.
Tort law is designed to secure the protection of all citizens from the danger of physical harm to their persons or to their property
and seeks to enforce standards of conduct. These standards are imposed by society, without regard to any agreement.
Economic loss doctrine precludes recovery for strictly economic losses in tort, regardless whether such damages are sought from
an injurious product.
12. Negligence.
Under the economic loss doctrine, economic losses are not recoverable in negligence absent personal injury or damage to property
other than the defective entity itself.
13. Negligence.
Damage to townhouses caused by allegedly defective framing of integrated structures of which townhouses were a part constituted
damage to the structures themselves, such that owners of the townhouses suffered purely economic losses for which the economic loss
doctrine barred recovery, despite claim that the framing was a defective product which caused other property damage. The alleged
inferior workmanship did not implicate the overriding policy of tort law, to promote safety.
14. Negligence; Products Liability.
When a heating and plumbing system damages the building as a whole, the building has injured itself, and only economic losses
have occurred for purposes of the economic loss doctrine.
Foreseeability of damages plays no role with respect to the applicability of the economic loss doctrine. Purely economic losses fall
outside the purview of tort recovery, even if such losses are foreseeable;
side the purview of tort recovery, even if such losses are foreseeable; overruling Charlie Brown Construction Co. v. Boulder City, 106
Nev. 497, 797 P.2d 946 (1990).
16. Products Liability.
Damage to townhouses caused by allegedly defective framing of integrated structures of which townhouses were a part constituted
damage to the structures themselves, such that owners of the townhouses suffered purely economic losses as to which the doctrine of
strict products liability was inapplicable.
Townhouses were not products, for purposes of strict products liability; overruling Worrell v. Barnes, 87 Nev. 204, 484 P.2d 573
(1971). Restatement (Second) of Torts 402A.
Certain products may be installed in a building and may retain their separate identities as products, without becoming an
integrated part of the structure, and in such instances, the doctrine of strict products liability could apply to the manufacturers of these
distinct products, if dangerously defective.
City, against whom all claims were dismissed, was not an aggrieved party entitled to appeal the dismissal of its cross-claims for
indemnity and contribution.
Only an aggrieved party has standing to appeal.
Before Rose, C. J., Young, Maupin, Shearing and Agosti, JJ.
1

OPINION ON REHEARING
By the Court, Young, J.:
On May 22, 1997, this court issued an opinion in the above-captioned appeal affirming in part,
reversing in part and remanding the matter to the district court. Calloway v. City of Reno, 113 Nev. 564,
939 P.2d 1020 (1997). Respondents P & H Construction, Inc. (P & H), Clarence Poehland (Poehland), and
John Carl Construction Co. (Carl) (collectively referred to as the subcontractors), petitioned this court
for rehearing, and the City of Reno (the City) subsequently joined in the petition. On December 3, 1998,
we granted rehearing and withdrew our opinion. We now issue this opinion in place of our prior opinion.
For the reasons set forth below, we conclude that the district court properly applied the economic loss
doctrine to preclude appellants' negligence claims against the subcontractors and the City.
__________

1
This matter was submitted for decision prior to expansion of the court from five to seven justices on
January 4, 1999. See Dow Chemical Co. v. Mahlum, 115 Nev. 13, 973 P.2d 842 (1999). Justice Maupin is
successor in office to former Chief Justice Steffen, and Justice Agosti is successor in office to former Chief
Justice Springer.
appellants' negligence claims against the subcontractors and the City. We further conclude that the economic
loss doctrine bars appellants' claim in strict products liability, and that the district court properly determined that
the structures at issue in this case are not products for purposes of strict products liability. Finally, we
conclude that we lack jurisdiction to consider the City's cross-appeal.
FACTS
This class action arose from alleged defects in the Huffaker Hills Townhouse Development in Reno. Charles
Calloway and Marlene Iacometti are class representatives, representing the class of 164 townhouse owners in
Huffaker Hills who brought the action (appellants).
In their original complaint, appellants asserted that their homes were built with defective roofing and siding
that was responsible for extensive water damage from rain and snow. That complaint named Offenhauser
Development Company, Highland Construction, Inc. (collectively referred to as the developer and contractor),
and Sparks Roofing and Siding Service, Inc. (Sparks Roofing and Siding), all Nevada corporations, as
defendants. Pursuant to NRCP 10(a), the complaint also named thirty fictitious individuals or entities as Doe
defendants. Appellants sought recovery based upon breach of express and implied warranties, negligence, strict
liability, fraud and misrepresentation.
Thereafter, appellants amended their complaint four times during the next two years. The first amended
complaint omitted appellants' claims for fraud and misrepresentation against the developer and contractor.
Appellants' second amended complaint named the City, among others, as a defendant. The claim against the
City was based upon negligent inspection of construction. In particular, appellants asserted that the City
approved the construction with actual knowledge of the alleged defects. The third amended complaint added
Gardner Plumbing and Heating (Gardner), and Cavallero Heating and Air Conditioning, Inc. (Cavallero), as
defendants. Additionally, the third amended complaint set forth allegations of construction defects related to
roofing, framing, plumbing, and heating and air conditioning.
In the interim, the developer and contractor, pursuant to NRCP 14(a), filed a first amended third party
complaint naming P & H and Poehland as third party defendants. Ultimately, all third party claims and/or
cross-claims filed by the developer and contractor were dismissed without prejudice pursuant to the stipulation
of the parties. Subsequently, appellants moved the district court for an order permitting the amendment of the
complaint to name the subcontractors in place of fictitiously named Doe defendants as entities responsible
for the framing of the townhouses.
entities responsible for the framing of the townhouses. The district court granted appellants' motions, and
thereafter, appellants filed their fourth, and final, amended complaint adding the subcontractors as defendants.
The claims against the subcontractors were based on defective framing. Appellants sought recovery against the
subcontractors on theories of breach of express and implied warranties, negligence, and strict liability.
The subcontractors moved the district court for summary judgment on appellants' claims against them. The
district court, applying the economic loss doctrine, granted the subcontractors' motion for summary judgment
after determining that recovery for pure economic loss was not appropriate in negligence and that plaintiffs had
to rely on their contractual remedies to recover for economic losses. Accordingly, the district court limited
appellants' claims against the subcontractors and the City to recovery in contract, or for personal injury or harm
to property in tort, and concluded that the repairs and replacement costs appellants sought to recover in tort were
economic losses not amenable to tort recovery. In addition, the district court summarily dismissed appellants'
strict liability claims on the ground that a townhouse is not a product. The district court explained that this court
has not yet pushed Nevada into the fold of those few jurisdictions [that] recognize strict liability for recovery of
economic loss and the district court declined to lead the way. The district court also summarily dismissed
sixty-five members of appellants' class based upon the statutes of repose.
Shortly thereafter, appellants settled their claims against the developer and contractor, and Sparks Roofing
and Siding in the amount of $826,500.00. Appellants also settled their claims against Gardner and Cavallero in
the amount of $225,000.00. Appellants then voluntarily dismissed their warranty claims and claims for damage
to personal property against the subcontractors.
In addition to the claims brought by appellants, the City cross-claimed against the developer and contractor
for indemnity and contribution. The developer and contractor moved for summary judgment on the City's
cross-claims, and the district court granted the motion.
In this appeal, appellants challenge the district court's use of the economic loss doctrine to preclude their
negligence claims against the subcontractors and the City. Appellants also take issue with the district court's
determination that the doctrine of strict liability does not apply to the townhouses at issue here. Additionally,
appellants contend that the district court misinterpreted and improperly applied the statutes of repose
retroactively to bar the claims of sixty-five appellants whose homes were substantially completed before October
30, 1981. The City has also filed an appeal and challenges the district court's dismissal of its
cross-claim for indemnity and contribution against the developer and contractor.
filed an appeal and challenges the district court's dismissal of its cross-claim for indemnity and contribution
against the developer and contractor.
DISCUSSION
I. Standard of review
[Headnotes 1, 2]
Under NRCP 56(c), summary judgment is appropriate if there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. See Butler v. Bogdanovich, 101 Nev. 449, 705 P.2d 662
(1985). A summary judgment is reviewed de novo. Dermody v. City of Reno, 113 Nev. 207, 931 P.2d 1354
(1997); see also SIIS v. United Exposition Services Co., 109 Nev. 28, 846 P.2d 294 (1993) (summarizing
authority for the conclusion that matters of law are reviewed de novo). On appeal from a summary judgment, this
court may be required to determine whether the law has been correctly perceived and applied by the district
court. Mullis v. Nevada National Bank, 98 Nev. 510, 512, 654 P.2d 533, 535 (1982).
II. Application of the economic loss doctrine
A. Overview of the economic loss doctrine
[Headnotes 3-5]
The economic loss doctrine marks the fundamental boundary between contract law, which is designed to
enforce the expectancy interests of the parties, and tort law, which imposes a duty of reasonable care and
thereby encourages citizens to avoid causing physical harm to others. Sidney R. Barrett, Jr., Recovery of
Economic Loss in Tort for Construction Defects: A Critical Analysis, 40 S.C. L. Rev. 891, 894 (1989)
[hereinafter Construction Defects]. In determining whether a claim sounds in contract or in tort, the pleadings
and the alleged facts must be considered.
A breach of contract may be said to be a material failure of performance of a duty arising under or
imposed by agreement. A tort, on the other hand, is a violation of a duty imposed by law, a wrong
independent of contract. Torts can, of course, be committed by parties to a contract. The question to be
determined . . . is whether the actions or omissions complained of constitute a violation of duties imposed
by law, or of duties arising by virtue of the alleged express agreement between the parties.
Bernard v. Rockhill Dev. Co., 103 Nev. 132, 135, 734 P.2d 1238, 1240 (1987) (quoting Malone v. University of
Kansas Medical Center, 552 P.2d 885, 888 (Kan. 1976)).
Under the economic loss doctrine there can be no recovery in tort for purely economic losses. American
Law of Products Liability (3d) 60:39, at 69 (1991). Purely economic loss is generally defined as the loss of
the benefit of the user's bargain . . . including . . . pecuniary damage for inadequate value, the cost of repair and
replacement of the defective product, or consequent loss of profits, without any claim of personal injury or
damage to other property. Id. 60:36, at 66.
The economic loss doctrine arose, in large part, from the development of products liability jurisprudence.
2
Early American courts embraced the doctrine of caveat emptor, under which a seller was not liable to the buyer
in contract or tort for product defects, unless the seller engaged in fraud or provided an express guarantee.
Express and implied warranty theory later developed within the parameters of contract law. See W. Page Keeton
et al., Prosser and Keeton on the Law on Torts 95A, at 679-80 (5th ed. 1984) [hereinafter Prosser and
Keeton]. Thus, liability for economic losses was viewed as contractual, and privity of contract was required.
Additionally, fairly negotiated disclaimers on liability were enforceable. Id. at 681. With the subsequent
introduction of negligence liability for defective products, buyers could recover from sellers for personal injury
and later, property damage. Id. 96, at 681-82 (citing MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y.
1916)).
Negligence was often difficult to prove, however, and courts viewed the manufacturer as being in a better
position to pay for injuries. Consequently, courts created the doctrine of strict liability of warranty. After some
preliminary decisions from other jurisdictions, the New Jersey Supreme Court decided Henningsen v.
Bloomfield Motors, Inc., 161 A.2d 69 (N.J. 1960), in which both an automobile manufacturer and dealer were
held liable to the purchaser's wife on a theory of implied warranty of safety. What followed was the most rapid
and altogether spectacular overturn of an established rule in the entire history of the law of torts. Prosser and
Keeton 97, at 690. Under the strict liability of warranty doctrine, the seller became the insurer of the ultimate
user's safety, and the citadel of privity was eradicated. Id. In other words, although recovery was based on
warranty, which was intimately connected to contract law, the existence of a contract was not necessary for
recovery.
__________

2
As pointed out by one commentator, [j]udicial hostility to the use of tort theory to recover purely economic
losses predates the twentieth-century battle over product liability. This hostility was motivated primarily by the
fear of mass litigation and the concern that traditional tort concepts were not capable of providing clear
limitations on potentially limitless liability. Construction Defects at 898.
Since such liability far exceeded traditional contractual liability and created confusion between the law of
contracts and torts, as well as complications with the Uniform Commercial Code, courts eventually abandoned
the doctrine in favor of strict liability in tort. Id. 99, at 692-94 (citing Greenman v. Yuba Power Products, Inc.,
377 P.2d 897 (Cal. 1963)).
[Headnote 6]
Because of this doctrinal development, and the resulting confusion created between tort and warranty
theories, the economic loss doctrine gained recognition and support. The doctrine serves to distinguish between
tort, or duty-based recovery, and contract, or promise-based recovery, and clarifies that economic losses cannot
be recovered under a tort theory. See Seely v. White Motor Company, 403 P.2d 145 (Cal. 1965) (concluding that
if a defective product causes purely economic harm, tort liability is precluded, in order to preserve the law of
warranty). As noted by the United States Supreme Court, [p]roducts liability grew out of a public policy
judgment that people need more protection from dangerous products than is afforded by the law of warranty. It is
clear, however, that if this development were allowed to progress too far, contract law would drown in a sea of
tort. East River S.S. Corp. v. Transamerica Delaval, 476 U.S. 858, 866 (1986) (citations omitted). The Supreme
Court recognized that maintaining the distinction between contract and tort is consistent with the different
purposes behind these theories of recovery:
The distinction that the law has drawn between tort recovery for physical injuries and warranty
recovery for economic loss is not arbitrary and does not rest on the luck' of one plaintiff in having an
accident causing physical injury. The distinction rests, rather, on an understanding of the nature of the
responsibility a manufacturer must undertake in distributing his products. . . .
The tort concern with safety is reduced when an injury is only to the product itself. . . .
Damage to a product itself is most naturally understood as a warranty claim. Such damage means
simply that the product has not met the customer's expectations, or, in other words, that the customer has
received insufficient product value.
Id. at 871-72 (quoting Seely, 403 P.2d at 151) (other citations omitted).
[Headnote 7]
This court, along with most other jurisdictions, has applied the economic loss doctrine in products liability
actions and has recognized the economic loss doctrine's distinction between tort and
warranty:
ognized the economic loss doctrine's distinction between tort and warranty: It is true that a plaintiff may not
recover economic loss under theories of strict products liability or negligence. However, purely economic loss
may be recovered under a breach of warranty theory. Central Bit Supply v. Waldrop Drilling, 102 Nev. 139,
140-41, 717 P.2d 35, 36-37 (1986) (citation omitted); see generally Arco Prods. Co. v. May, 113 Nev. 1295,
948 P.2d 263 (1997); Nat'l Union Fire Ins. v. Pratt and Whitney, 107 Nev. 535, 815 P.2d 601 (1991); Bernard,
103 Nev. at 135, 734 P.2d at 1240; American Law of Products Liability (3d) 60:39, at 70.
We have also applied or discussed the economic loss doctrine in other contexts as well. For instance, in
Local Joint Executive Board v. Stern, 98 Nev. 409, 651 P.2d 637 (1982), we determined that employees of the
MGM Grand Hotel could not recover, under theories of negligence and strict liability, economic losses in the
form of lost wages and employment benefits. Later, in Oak Grove Investors v. Bell & Gossett Co., 99 Nev. 616,
625, 668 P.2d 1075, 1080 (1983), we noted that an apartment complex's defective heating and plumbing system,
which caused substantial leakage of water throughout the complex and damage to the apartments, did not cause
purely economic losses. We therefore suggested, in dicta, that the action could proceed on claims of
negligence and strict liability. Id., 668 P.2d at 1080-81.
B. Application of the economic loss doctrine in construction defects cases
[Headnote 8]
Oak Grove represents the only case in which this court considered whether the economic loss doctrine might
preclude tort recovery for damages to a building. Even though Oak Grove suggested that the economic loss
doctrine should be considered in such circumstances, this court later stated, in dictum, that the economic loss
doctrine should not apply to construction defects cases:
[T]he economic loss doctrine was never intended to apply to construction projects that reflect the
products and efforts of so many different manufacturers, laborers, crafts, supervisors and inspectors in the
creation of an essentially permanent place of habitation. On the other hand, as will be noted in greater
detail hereafter, commercial products that may, for whatever reason, injure themselves are readily insured
and suitable for inclusion within the economic loss doctrine.
Pratt and Whitney, 107 Nev. at 539, 815 P.2d at 603. Pratt and Whitney involved litigation over damages to an
airplane and had nothing to do with building construction. As the dissent aptly noted, "[w]hile this may be
our decision when that issue is presented to us and carefully briefed, we should refrain
from making such broad gratuitous legal statements until [the issue is] properly before
this court."
noted, [w]hile this may be our decision when that issue is presented to us and carefully briefed, we should
refrain from making such broad gratuitous legal statements until [the issue is] properly before this court. Id. at
546-47, 815 P.2d at 608 (Rose, J., dissenting).
Although the Pratt and Whitney dictum cogently points out why construction projects should not be
considered products for the purpose of products liability, this dictum unfortunately blurs the distinction
between the economic loss doctrine and products liability. As stated previously, the economic loss doctrine
arose, in large part, from the development of products liability, but its application is broader and serves to
maintain a distinction between contract and tort principles. See Ramerth v. Hart, 983 P.2d 848, 851 (Idaho 1999)
(stating that the economic loss doctrine applies to negligence in general; its application is not restricted to
products liability cases).
[Headnotes 9, 10]
The crux of the doctrine is . . . the premise that economic interests are protected, if at all, by contract
principles, rather than tort principles. Construction Defects at 895. Contract law is designed to enforce the
expectancy interests created by agreement between the parties and seeks to enforce standards of quality. This
standard of quality must be defined by reference to that which the parties have agreed upon. Crowder v.
Vendendeale, 564 S.W.2d 879, 882 (Mo. 1978), overruled on other grounds by Sharp Bros. Contracting Co. v.
American Hoist & Derrick Co., 703 S.W.2d 901 (Mo. 1986). In contrast, tort law is designed to secure the
protection of all citizens from the danger of physical harm to their persons or to their property and seeks to
enforce standards of conduct. These standards are imposed by society, without regard to any agreement. Tort
law has not traditionally protected strictly economic interests related to product qualityin other words, courts
have generally refused to create a duty in tort to prevent such economic losses. See Construction Defects at
894-95, 902.
[Headnote 11]
As set forth above, the economic loss doctrine serves to define the scope of duty and shield[s] a defendant
from unlimited liability for all of the economic consequences of a negligent act, particularly in a commercial or
professional setting, and thus . . . keep[s] the risk of liability reasonably calculable. Stern, 98 Nev. at 411, 651
P.2d at 638. Permitting plaintiffs to recover in tort for purely economic losses would result in open-ended
liability, since it is virtually impossible to predict all the economic consequences of a given act. See State of La.
ex rel. Guste v. M/V Testbank, 752 F.2d 1019, 1022 {5th Cir. 19S5).
752 F.2d 1019, 1022 (5th Cir. 1985). Thus, the economic loss doctrine precludes recovery for strictly economic
losses in tortregardless whether such damages are sought from an injurious product.
This court has applied the economic loss doctrine outside of the products liability context, see Stern, 98 Nev.
at 410-11, 651 P.2d at 638, and has suggested that it could apply with respect to damages to a dwelling. See Oak
Grove, 99 Nev. at 625, 668 P.2d at 1080. Additionally, the economic loss doctrine has been specifically applied
by other jurisdictions in construction defects cases. See, e.g., Nastri v. Wood Bros. Homes, Inc., 690 P.2d 158
(Ariz. Ct. App. 1984) (applying the economic loss doctrine to a negligent construction action against builder);
2314 Lincoln Park West Condo. v. Mann, 555 N.E.2d 346 (Ill. 1990) (applying the economic loss doctrine to an
architectural malpractice action); Atherton Condo. Bd. v. Blume Dev., 799 P.2d 250 (Wash. 1990) (applying the
economic loss doctrine to a negligent construction claim).
We conclude that damages sought, in tort, for economic losses from a defective building are just as offensive
to tort law as damages sought for economic losses stemming from a defective product. The Florida Supreme
Court has fittingly recognized that the economic loss doctrine must be considered in construction defects cases:
Buying a house is the largest investment many consumers ever make, and homeowners are an appealing,
sympathetic class. If a house causes economic disappointment by not meeting a purchaser's expectations,
the resulting failure to receive the benefit of the bargain is a core concern of contract, not tort, law. There
are protections for homebuyers, however, such as statutory warranties, the general warranty of
habitability, and the duty of sellers to disclose defects, as well as the ability of purchasers to inspect
houses for defects. Coupled with homebuyers' power to bargain over price, these protections must be
viewed as sufficient when compared with the mischief that could be caused by allowing tort recovery for
purely economic losses.
Casa Clara v. Charley Toppino and Sons, 620 So. 2d 1244, 1247 (Fla. 1993) (citations and footnotes omitted).
Accordingly, our Pratt and Whitney dictum notwithstanding, we conclude that the economic loss doctrine
applies to construction defects cases.
3

__________

3
We note that our dissenting colleague would create an absolute exception to the economic loss doctrine for
construction defects cases, at least in the residential context. However, any attempt to exempt a certain type of
case from the doctrine's application, without analyzing the policy rationales under-
C. Appellants' negligence claim against the subcontractors
[Headnotes 12, 13]
With respect to the construction industry, courts have recognized negligence actions brought by real
property owners for personal injury and property damage. See generally Edie Lindsay, Strict Liability and the
Building Industry, 33 Emory L.J. 175, 201-02 (1984); see also Woodward v. Chirco Constr. Co., 687 P.2d 1269
(Ariz. 1984); Cosmopolitan Homes, Inc., v. Weller, 663 P.2d 1041 (Colo. 1983); Theis v. Heuer, 280 N.E.2d
300 (Ind. 1972). Under the economic loss doctrine, however, economic losses are not recoverable in negligence
absent personal injury or damage to property other than the defective entity itself. See Central Bit Supply, 102
Nev. at 140-41, 717 P.2d at 36-37; Stern, 98 Nev. at 410-11, 651 P.2d at 638; see generally American Law of
Products Liability (3d) 60:52, at 90. Appellants contend that the district court erroneously dismissed their
negligence claim against the subcontractors based upon the economic loss doctrine because a defective
product, the framing, caused other property damagenamely, water intrusion, damage to flooring and
ceilings, and structural and wood decaythereby rendering the economic loss doctrine inapplicable.
We disagree. In Pratt and Whitney, 107 Nev. at 539, 815 P.2d at 603, we determined that an airplane engine
that failed and caused the plane to crash damaged only the product (airplane) itself, and therefore, the economic
loss doctrine barred recovery in tort. In concluding that a component part of the airplane injured the integrated
product and caused only economic losses, our Pratt and Whitney decision relied on East River S.S. Corp. v.
Transamerica Delaval, 476 U.S. 858 (1986). There, the U.S. Supreme Court determined that component parts of
a product cannot cause other property damage compensable in tort:
__________
lying the doctrine, and without considering the very real distinctions between the policies governing recovery in
contract and tort, necessarily shifts the focus to a particular plaintiff or group of plaintiffs. Such an approach
undermines the very purpose of the economic loss doctrineto provide a boundary between contract law and
tort lawand results in outcome-determinative decisions that may have no analytical consistency. Such decision
making will inevitably blur and potentially destroy the distinctions between these two fundamentally different
civil remedies.
In our view, the more reasoned method of analyzing the economic loss doctrine is to examine the relevant
policies in order to ascertain the proper boundary between the distinct civil law duties that exist separately in
contract and tort. In the case at bar, permitting tort recovery for economic losses from construction defects
would create a general, societally imposed duty on the part of builders and developers to avoid such losses.
These losses are not properly addressed by tort law, which has as its underlying policy the promotion of safety.
Instead, such harm is paradigmatically addressed by the policies underlying contract lawto enforce standards
of quality as defined by the parties' contractual relationships.
[I]n the traditional property damage cases, the defective product damages other property. . . . Since
all but the simplest machines have component parts, [a contrary] holding would require a finding of
property damage' in virtually every case where a product damages itself. Such a holding would eliminate
the distinction between warranty and strict products liability. Northern Power & Engineering Corp. v.
Caterpillar Tractor Co., 623 P.2d 324, 330 (Alaska 1981). . . . Obviously, damage to a product itself has
certain attributes of a products-liability claim. But the injury sufferedthe failure of the product to
function properlyis the essence of a warranty action, through which a contracting party can seek to
recoup the benefit of its bargain.
Id. at 867-68, quoted, in part, with approval in Pratt and Whitney, 107 Nev. at 540, 815 P.2d at 604. Thus, we
have unequivocally concluded, with respect to factory-assembled products, that when an integral component
injures the rest of the product, only economic loss has occurred.
Determining whether part of a structure has caused economic loss or property damage is analytically more
difficult than with factory-assembled products. As discussed below, buildings generally represent the
cooperative work of a variety of parties at different times, and each building may involve unique materials and
methods, as well as an original design. Additionally, buildings, because of their long life span, are subject to
remodeling and other changes, which may involve additional designs, laborers and materials.
In Oak Grove, 99 Nev. at 625, 668 P.2d at 1080-81, we suggested, in dictum, that the owner of an apartment
complex, who sued the manufacturer of fittings used in the complex's plumbing and heating system, had stated
causes of action in negligence and strict liability. The fittings had allegedly increased water velocity beyond safe
limits and caused extensive erosion, corrosion and leakage throughout the complex. Id. at 619, 668 P.2d at 1077.
Our dictum stated that the owners were not seeking to recover purely economic losses. Id. at 625, 668 P.2d at
1080.
In our subsequent Pratt and Whitney opinion, we distinguished Oak Grove as follows:
In Oak Grove, . . . there was little factual basis for invoking the economic loss doctrine. Indeed, rather
than receding from our rulings in Stern and Central Bit Supply, we concluded, by way of dictum, that the
factual scenario in Oak Grove did not implicate the economic loss doctrine because it involved a
defective heating and plumbing system that caused water leakage and damage throughout the apartment
complex.
complex. It was thus clear that, in contrast to the instant case, Oak Grove did not involve a single
integrated product that injured itself. The apartment complex there consisted of a number of separate
apartment units that were each self-contained and constructed for the separate occupancy of the end
users.
Pratt and Whitney, 107 Nev. at 538-39, 815 P.2d at 603.
[Headnote 14]
Oak Grove did involve an entire apartment complex with separate apartment units; nevertheless, these units
were part of the larger structure, and the heating and plumbing system served the entire complex. Although
buildings may involve a more complicated system of components, we do not discern a meaningful analytical
difference between an airplane's engine and a building's heating and plumbing system. Both an airplane's engine
and a building's heating and plumbing system are necessary and integrated parts of the greater whole;
additionally, both are themselves comprised of smaller components. Consequently, when a heating and plumbing
system damages the building as a whole, the building has injured itself and only economic losses have occurred.
We therefore disapprove of our dictum in Oak Grove, which stated that the leaky fittings had not caused purely
economic losses.
Other jurisdictions have concluded that a defective building creates only economic loss, even if the particular
defect causes damage to other parts of the structure. See, e.g., Chicago Heights Venture v. Dynamit Nobel of
America, 782 F.2d 723 (7th Cir. 1986) (holding roof material that failed during windstorm, resulting in leaks,
was not legally significant, and only economic losses were at issue); Nastri v. Wood Bros. Homes, Inc., 690 P.2d
158 (Ariz. Ct. App. 1984) (holding cracks in kitchen floor, vinyl flooring, family room and bedroom, and
buckling of the roof, cracked bricks and joists, all involved damage to the structure itself; therefore, only
economic losses were presented and owners could not sue in tort); Danforth v. Acorn Structures, Inc., 608 A.2d
1194 (Del. 1992) (holding homeowner who brought tort action against seller of building kit for negligent design
could not recover because deterioration of windows, door frames and exterior siding was strictly economic loss);
Casa Clara v. Charley Toppino and Sons, 620 So. 2d 1244 (Fla. 1993) (holding homeowners could not recover
in tort for allegedly defective concrete that cracked and broke off); Redarowicz v. Ohlendorf, 441 N.E.2d 324
(Ill. 1982) (holding owner of home who sought recovery for costs of repair and replacement for defectively
constructed chimney, wall and patio suffered only economic losses not recoverable in tort because
homeowner alleged only qualitative defects;
not recoverable in tort because homeowner alleged only qualitative defects; inferior workmanship that leads to
eventual deterioration is not properly addressed by tort law); Chenango C. Indus. D.A. v. Lockwood Greene E.,
494 N.Y.S.2d 832 (1985) (holding building owners could not sue roofing material manufacturer in tort for
cracks, splits and leaks in the roof because owners suffered only economic losses); American Towers Owners v.
CCI Mechanical, 930 P.2d 1182 (Utah 1996) (holding condominium association could not pursue negligence
claim against contractor and subcontractors for economic losses, which included repair costs and diminution of
property values, plumbing problems, including pipe breaks and leaks and pressure loss and failures, as well as
substandard components).
4

Here, the townhouses are part of larger, integrated structures, and the framing was an integral component of
these structures. The damage caused by the allegedly defective framing therefore constituted damage to the
structures themselvesno other property damage resulted, and appellants suffered purely economic losses.
Because of the alleged construction defects appellants failed to receive the benefit of their bargains; the defects
resulted in a lower standard of quality than that expected. Such inferior workmanship, which leads to building
deterioration, is not properly addressed by tort law. See Redarowicz, 441 N.E.2d at 327. In such circumstances,
the overriding policy of tort law, to promote safety, is not implicated. We therefore discern no reason to impose,
in tort law, a general societal duty to prevent such economic losses.
[Headnote 15]
Appellants further attempt to overcome the economic loss doctrine limitation on tort actions by asserting that
this court should apply the foreseeability exception to the economic loss rule. According to appellants, the
[d]amage from defective construction and the repair costs to correct the defects are foreseeable and
determinable with relative certainty. Previously, in Stern, we were urged to adopt a foreseeability exception to
the economic loss doctrine; we concluded, however, that [t]he foreseeability of economic loss, even when
modified by other factors, is a standard that sweeps too broadly in a professional or commercial context,
portending liability that is socially harmful in its potential scope and uncertainty. Stern, 98 Nev. at 411, 651
P.2d at 638.
__________

4
We are aware that other courts have concluded that a defective part of a building can cause damage to
other property cognizable in tort. See, e.g., Lamb v. Georgia Pacific Corp., 392 S.E.2d 307 (Ga. Ct. App.
1990); Kristek v. Catron, 644 P.2d 480 (Kan. Ct. App. 1982); Board of Education v. A, C, and S, Inc., 546
N.E.2d 580 (Ill. 1989); Northridge Co. v. W.R. Grace and Co., 471 N.W.2d 179 (Wis. 1991). We do not find
these cases analytically persuasive, however.
Subsequently, in Charlie Brown Construction Co. v. Boulder City, 106 Nev. 497, 797 P.2d 946 (1990), we
considered a situation in which the subcontractors on a subdivision project approved by the City brought an
action against the City to recover for unpaid work following the subdivider's default. One of the claims for relief
was that the City negligently released funds deposited by the subdivider and failed to require the subdivider to
post a payment bond as mandated by city ordinance. On appeal, the City argued that appellants suffered only
economic losses, and therefore, the negligence claim was barred by the economic loss doctrine. We disagreed
and stated that
[t]his case is readily distinguishable from the economic loss cases we have decided. . . .
. . . .
Both Stern and Central Bit are cases where individuals and entities who suffered damage to their
economic expectancies because of allegedly defective products sought recovery from the parties
participating in the supplying of the product. As we explained in Central Bit, this rule is really the seller
foreseeability rule for consequential damages first enunciated in Hadley v. Baxendale, 156 Eng. Rep. 145
(1854). [Here, appellants'] injuries were not caused by a faulty product. They are not third parties to an
injury or tort seeking recovery for derivative harm. [Appellants] are directly injured parties seeking direct
recovery from the tortfeasor. It is not consequential damages they seek but direct damages from the
failure to perform a mandatory act. . . .
Additionally, although appellants did not suffer property injury in the more traditional tort sense in
which we generally view the matter, it is not at all clear that they did not suffer an injury to property.
They certainly suffered injury to their respective property interests in the amount of their unpaid claims
when they performed labor and added materials to the City's land.
Also, given the context of the dispute, it would be disingenuous for the City to claim that appellants'
injuries were unforeseeable. . . . As the purely economic recovery rule is bound up in foreseeability, the
rule enunciated in Stern and Central Bit is simply inapplicable to this case.
Charlie Brown, 106 Nev. at 507-09, 797 P.2d at 952-53 (footnote omitted).
Unfortunately, Charlie Brown failed to recognize that the damages at issue were strictly economic losses, not
cognizable in tort. No physical injury to persons or property existed. Moreover, the policy rationale supporting
the imposition of damages for negligence in tort was not triggered
gence in tort was not triggeredthis court's conclusion that the subcontractors had stated a cause of action in
tort did not promote the goal of safety. Further, although Charlie Brown suggests that the economic loss
doctrine's application turns on foreseeability, this notion was expressly disapproved in Stern. We now reiterate
that foreseeability of damages plays no role with respect to the economic loss doctrine. Purely economic losses
fall outside the purview of tort recovery, even if such losses are foreseeable. As discussed above, the doctrine's
application turns on the type of damages at issue, and the policies underlying recovery in tort and contract.
Accordingly, we overrule Charlie Brown with respect to its analysis and application of the economic loss
doctrine, and we reject appellants' argument that the foreseeability exception to the economic loss doctrine
should be adopted.
Based upon the foregoing discussion, we conclude that the district court properly applied the economic loss
doctrine to preclude appellants' negligence claim against the subcontractors.
D. Appellants' negligence claim against the City
In their complaint for negligence against the City, appellants assert that the City approved the construction
of the townhouses with full knowledge of the defects alleged, and failed to act reasonably after learning of the
alleged defects by not requiring the contractor to comply with the applicable building codes. The district court
precluded appellants' negligence claim against the City under the economic loss doctrine. Specifically, the
district court found that appellants' claims against the City were all based on negligence, and that appellants
did not allege any personal injury or property damage, but instead sought to recover damages for costs of
repair and/or replacement to the townhouses. As explained previously, under the economic loss doctrine there
can be no recovery in tort for purely economic loss. Additionally, although a cause of action for an intentional
tort is not precluded under the economic loss doctrine, see Stern, 98 Nev. at 411, 651 P.2d at 638; Construction
Defects at 892 n.2, appellants did not plead facts to support an intentional tort. See Tahoe Village Homeowners
v. Douglas County, 106 Nev. 660, 799 P.2d 556 (1990). Accordingly, we conclude that the district court
properly dismissed appellants' claim against the City.
E. Appellants' strict liability claims against the subcontractors and the City
[Headnote 16]
The district court concluded that appellants could not pursue their strict liability claims against the
subcontractors and the City because a house is not a product for strict liability purposes and because
such claims are precluded by the economic loss doctrine.
and because such claims are precluded by the economic loss doctrine. Appellants contend that they had no
meaningful opportunity to discover the framing deficiencies and that they were required to rely on the framers'
superior and exclusive knowledge.
We explained in Stern, 98 Nev. at 411, 651 P.2d at 638, that [t]he doctrine of strict products liability was
developed to assist plaintiffs who could not prove that products which caused physical injury at the point of use
had been manufactured negligently. The doctrine is unavailable for purely economic loss; its application is
limited to personal injury and property damage. See also May, 113 Nev. at 1299 n.1, 948 P.2d at 266 n.1;
Central Bit Supply, 102 Nev. at 140-41, 717 P.2d at 36. As discussed above, appellants seek to recover purely
economic loss with respect to the defective townhouses. Consequently, the district court properly dismissed their
strict liability claims.
[Headnote 17]
Moreover, we agree with the district court's conclusion, in this instance, that the townhouses are not
products for purposes of strict products liability. The Restatement of Torts (Second) section 402A defines
strict liability as follows:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or
consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or
consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition
in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product or entered into any contractual relation with the
seller.
The doctrine of strict products liability developed from judicial concerns about a plaintiff's ability to prove a
remote manufacturer's or seller's negligence, to spread the costs of damage from dangerously defective products
to the consumer by imposing them on the manufacturer or seller, and to promote safety by eliminating the
negligence requirement. See generally Prosser and Keeton 98, at 692-93.
Some courts have concluded that a building can constitute a product under strict products liability. See,
e.g., Blagg v. Fred Hunt Co., 612 S.W.2d 321 (Ark. 1981) (stating that product applies to a house just
as it applies to an automobile; obligation of seller or manufacturer is one of enterprise
liability);
applies to a house just as it applies to an automobile; obligation of seller or manufacturer is one of enterprise
liability); Miller v. Los Angeles County Flood Control District, 505 P.2d 193 (Cal. 1973) (ruling that the
doctrine of strict products liability applied to homes, since they can be defective products); see generally
Annotation, Recovery, Under Strict Liability in Tort, for Injury or Damage Caused by Defects in Building or
Land, 25 A.L.R. 4th 353, 365-66 (1983) [hereinafter Defects in Building].
Other courts however, have concluded that strict products liability does not apply to buildings. In reaching
their conclusions, these courts have distinguished the policies underlying strict products liability from those
involved in the situation where a house or building is defective. More specifically, these courts have recognized
that in the construction context, tracing a defect to a manufacturer or supplier and locating that entity generally
poses no significant problem, unlike the situation with the remote manufacturer of a product that travels through
interstate commerce. Additionally, these courts have pointed out that a builder cannot easily limit his liability by
express warranties in disclaimers and that the purchaser of a building has the opportunity to make a meaningful
inspection of the property at issue. See Defects in Building at 366-67, and cases cited therein.
Other commentators have provided additional reasons why construction products should not be subject to
strict liability:
The uncritical application of the strict tort liability doctrine . . . disregards some very real differences
between mass-produced goods and buildings and their respective methods of production. The raising of a
building and the assembly-line manufacturing of a product are not analogous processes. From start to
finish, the construction of a building depends on the cooperative interaction of a number of independent
parties.
. . . .
[M]ost buildings are one-of-a-kind, requiring methods and materials that change with each project.
The architect cannot work out design weaknesses in a series of prototypes, which are built but never put
on the market, as is often done with manufactured goods. Neither can the contractor test a variety of
method and material combinations before putting up the final structure. Even identical model subdivision
homes are subject to the vagaries of subsurface soil conditions. . . . Furthermore, in construction work the
project is generally designed by one independent firm and built by another. The consistent interplay
between designer and builder, usually present in the manufacturing industry, is absent in the construction
industry. . . .
Another major distinction between manufactured goods and buildings is that normally a building is
put up at the direction of the owner/developer, and if his needs change, the final product may be quite
different from that shown in the original plans. . . .
A final difference between buildings and manufactured goods [is that] [b]uildings have significantly
longer expected useful life than do other products, which warrants different standards of maintenance and
repair.
Edie Lindsay, Strict Liability and the Building Industry, 33 Emory L.J. 175, 184-91 (1984).
In Worrell v. Barnes, 87 Nev. 204, 484 P.2d 573 (1971), we considered whether a contractor who had
performed remodeling work on a home could be subject to strict liability in tort. The contractor had installed a
gas line to a new water heater, and the gas line had a leaky fitting. The leak caused a fire that damaged the house
and its contents. After the district court dismissed the homeowners' strict liability and warranty claims, the
homeowners appealed. On appeal, this court noted that strict liability had been applied to buildings:
As in the application of the doctrine to cases where injury was caused by foodstuffs, automobiles,
medicine and others, strict liability has been applied to homes or builders. The nature of the product is
such that superior and exclusive knowledge in the builder or fabricator is called for and he therefore must
bear the responsibility of its quality within reasonable limits.
Id. at 207, 484 P.2d at 575.
We then explained that the allegedly defective product was that part of the gas system added onto the
original system by the contractor. We concluded that a leaky fitting comes within the definition of a defective
product and that [the contractor] must be said to have manufactured and sold a product' so as to bring into
operation the doctrine of strict liability. Id. at 208, 484 P.2d at 576.
[Headnote 18]
The contractor who installed the gas line fitting in Worrell should not have been subject to the doctrine of
strict products liability. As set forth above, one is strictly liable for damages from a dangerously defective
product only if one is a seller engaged in the business of selling such a product. See Restatement (Second) of
Torts 402A (1965). Although a contractor may, as part of a construction or remodeling project, install certain
products, a contractor, without doing more, is not engaged in the business of "manufacturing" or selling
such products and therefore does not come within the ambit of section 402A.
ness of manufacturing or selling such products and therefore does not come within the ambit of section 402A.
Consequently, we overrule Worrell with respect to its application of strict products liability.
5

For the reasons set forth above, we conclude that the district court properly determined that appellants' strict
liability claims were not viable.
6

III. The City's cross-appeal
[Headnotes 19, 20]
The City filed a cross-appeal contending that the district court erred in dismissing its cross-claims against
the developer and contractor for indemnity and contribution. We conclude that we lack jurisdiction to consider
the City's cross-appeal. Only an aggrieved party has standing to appeal. See NRAP 3A(a); Valley Bank of
Nevada v. Ginsburg, 110 Nev. 440, 446, 874 P.2d 729, 734 (1994). The district court granted the City's motion
for summary judgment and dismissed all of appellants' claims against the City. Because the City prevailed in the
district court, the City is not an aggrieved party. We therefore dismiss the City's cross-appeal for lack of
jurisdiction.
7

CONCLUSION
Based upon the discussion above, we affirm the district court's orders dismissing appellants' negligence and
strict liability claims against the subcontractors and the City because the claims are barred by the economic
loss doctrine and because the townhouses are not products for purposes of strict products liability.
Additionally, we conclude that we lack jurisdiction to consider the City's cross-appeal.
Shearing and Agosti, JJ., concur.
__________

5
We acknowledge that certain products may be installed in a building and may retain their separate
identities as products, without becoming an integrated part of the structure. In such instances, the doctrine of
strict products liability could apply to the manufacturers of these distinct products, if dangerously defective.
Nevertheless, at this point, we need not decide as a general matter when a separate product becomes part of the
structure itself.

6
Appellants also maintain that the district court erred in applying the statutes of repose retroactively to
preclude the claims of sixty-five class members. In light of our conclusions regarding the economic loss
doctrine and strict products liability, we need not reach this issue. For a thorough discussion of the statutes of
repose and their retroactive application, see G and H Assocs. v. Ernest W. Hahn, Inc., 113 Nev. 265, 934 P.2d
229 (1997).

7
On June 3, 1999, two years after the rehearing petition was filed, various municipalities and counties filed
a motion for leave to file an amicus brief in support of the City's cross-appeal. In light of our conclusion that we
lack jurisdiction to consider the City's cross-appeal, we deny the motion as moot.
Maupin, J., concurring in part and dissenting in part:
The internal inconsistency that marks our jurisprudence on the economic loss doctrine is not unique to
Nevada. Almost every state that has adopted the economic loss rule has carved out discreet exceptions that to
some degree undermine the public policies behind it. The majority on rehearing in this matter, I believe,
substantially reconciles our prior authority on this subject and, in large part, provides a reasonable synthesis that
will facilitate predictability in the future. I write separately to expand on the history behind the economic loss
doctrine in Nevada and because I believe the majority may have unnecessarily broadened its scope.
The starting point of any analysis of our version of the rule must be Local Joint Executive Board v. Stern, 98
Nev. 409, 651 P.2d 637 (1982). In that case, former employees of the MGM Grand Hotel sought to recover lost
salaries and employment benefits for the period during which the resort remained closed following a catastrophic
fire in November 1980. This court reaffirmed the common law rule that, absent privity of contract or personal
injury or property damage, a plaintiff may not recover in negligence or strict tort liability for purely economic
losses. Id. at 411, 651 P.2d at 638. We consistently applied Stern to prevent tort recovery for purely economic
losses in Central Bit Supply v. Waldrop Drilling, 102 Nev. 139, 717 P.2d 35 (1986) (holding that economic
losses in connection with a broken drill bit could only be recovered under a breach of warranty theory), and in
Arco Product Co. v. May, 113 Nev. 1295, 948 P.2d 263 (1997) (ruling that loss of sales by a convenience store
from allegedly defective inventory control system could not, as a matter of law, be the subject of a negligence or
strict tort liability claim).
1

As noted, a general statement of the economic loss rule is that recovery for purely economic losses may not
be had in tort. Our decisions in Stern, Central Bit and Arco demonstrate this court's clear and continuing
embrace of the economic loss doctrine. There are several corollaries to the economic loss rule. First, claims for
personal injuries and/or property damage do not implicate the economic loss rule. Second, economic losses are
recoverable in tort only when they are incidental to claims for personal injuries and/or property damage. Third,
when a product causes injury to itself, i.e., where a defective component of an integrated product damages all or
part of the remaining whole, the damages are purely economic, leaving the parties to the acquisition of the
product to their contractual remedies.
__________

1
Stern may arguably be read to imply that a plaintiff may recover purely economic losses in tort if he also has
a contractual relationship with the defendant. Central Bit, in my view, dispels this notion in its holding that a
plaintiff with express or implied indemnity rights must bring suit in contract, not in tort.
tion of the product to their contractual remedies. Fourth, a product that injures other property causes property
damage recoverable in tort. See American Law of Products Liability (3d) 60:36, at 66. We have directly or
impliedly adopted these correlative principles in all of our cases dealing with this subject.
2

The primary policy behind the rule articulated in Stern is to:
shield a defendant from unlimited liability for all of the economic consequences of a negligent act,
particularly in a commercial or professional setting,
3
and thus to keep the risk of liability reasonably
calculable.
Stern, 98 Nev. at 411, 651 P.2d at 638 (emphasis and footnote added).
The majority in this matter has most ably articulated the history behind the rule and the divergence in scope
between tort and contract based recovery.
4
As also noted by the majority, the fundamental policy behind this
rule is to restrict parties to commercial transactions to contractual remedies based simply upon the foreseeability
of loss of financial expectancies. Unfortunately, beyond Stern, Central Bit and Arco, several of our other cases
have obscured the scope of the economic loss rule.
Oak Grove Investors v. Bell & Gossett Co.
In Oak Grove Investors v. Bell & Gossett Co., 99 Nev. 616, 668 P.2d 1075 (1983), a case decided only one
year after Stern, this court discussed the economic loss doctrine in the context of a construction-defect
dispute. A unanimous court concluded that a negligence and strict tort liability claim arising from
a defective plumbing fitting should not have been dismissed on statute of limitation
grounds,
__________

2
The third and fourth of these corollaries were examined in the United States Supreme Court cases of East
River S.S. Corp. v. Transamerica Delaval, 476 U.S. 858 (1986), Saratoga Fishing Co. v. J.M. Martinac & Co.,
520 U.S. 875 (1997), and in our decision in National Union Fire Insurance v. Pratt and Whitney, 107 Nev. 535,
815 P.2d 601 (1991). See the discussion below.

3
Our cases have never made it clear what the Stern court meant by its statement of protection from tort
liability in the professional setting. Certainly, economic losses without property damage or personal injury
have been deemed recoverable in tort in connection with various types of professional malpractice/negligence
claims.

4
In Bernard v. Rockhill Development Co., 103 Nev. 132, 135, 734 P.2d 1238, 1240 (1987) (quoting Malone
v. University of Kansas Medical Center, 552 P.2d 885, 888 (Kan. 1976)), we observed:
A breach of contract may be said to be a material failure of performance of a duty arising under or
imposed by agreement. A tort, on the other hand, is a violation of a duty imposed by law, a wrong
independent of contract. Torts can, of course, be committed by parties to a contract. The question to be
determined . . . is whether the actions or omissions complained of constitute a violation of duties imposed
by law, or of duties arising by virtue of the alleged express agreement between the parties.
that a negligence and strict tort liability claim arising from a defective plumbing fitting should not have been
dismissed on statute of limitation grounds, or because of a failure of proof as to whether a defect with regard to
the fitting had been shown. Although not necessary to the decision, this court went on to observe via obiter
dictum that water leakage caused substantial leakage of water throughout, and damage to, the apartment [sic]
within the . . . complex. Oak Grove, 99 Nev. at 625, 668 P.2d at 1080. From this factual pattern, this court
concluded that the water damage claim in Oak Grove constituted property damage for purposes of an
economic loss analysis.
5
Thus, a completed entity that injured itself caused property damage, taking the
case out of the economic loss doctrine.
6

National Union Fire Insurance v. Pratt and Whitney
An attempted extension of the policy behind the economic loss doctrine is reflected by our split decision in
National Union Fire Insurance v. Pratt and Whitney, 107 Nev. 535, 815 P.2d 601 (1991). In that case, this
court embraced the well-accepted rule, noted above, that a plaintiff may not recover in tort for the loss of a
product that injures itself. In Pratt and Whitney, this court considered an entire airplane a product for the
purpose of the economic loss rule. Thus, this court rejected the notion that a readily identifiable component part
of the aircraft, namely the engine, was the cause of property damage, to wit: the destruction of the entire
aircraft. This approach is consistent with that taken by the United States Supreme Court in East River S.S. Corp.
v. Transamerica Delaval, 476 U.S. 858 (1986) (a steamship injuring itself causes pure economic loss). However,
in its analysis of this issue, the Pratt and Whitney opinion contains several problematic justifications of its result
that have serious implications with respect to the scope of the rule in the context of construction defect litigation.
First, the majority attempted to distinguish Oak Grove with the following observation:
In Oak Grove, however, there was little factual basis for invoking the economic loss doctrine. Indeed,
rather than receding from our rulings in Stern and Central Bit Supply,
7
we concluded, by way of dictum,
that the factual scenario in Oak Grove did not implicate the economic loss doctrine
because it involved a defective heating and plumbing system that caused water
leakage and damage throughout the apartment complex.
__________

5
Oak Grove cites Worrell v. Barnes, 87 Nev. 204, 484 P.2d 573 (1971), for the limited proposition that strict
tort liability applies to claims for property damage as well as to personal injury cases. This court did not reach
economic loss issues in Worrell.

6
See the first corollary to the rule discussed above.

7
Central Bit was actually decided subsequent to Oak Grove.
Oak Grove did not implicate the economic loss doctrine because it involved a defective heating and
plumbing system that caused water leakage and damage throughout the apartment complex. It was thus
clear that, in contrast to the instant case, Oak Grove did not involve a single integrated product that
injured itself. The apartment complex there consisted of a number of separate apartment units that were
each self-contained and constructed for the separate occupancy of the end users. Indeed, this court has
not yet entered the fray among courts as to whether even a house constitutes a product for purposes of
the law of strict products liability, let alone an entire apartment complex.
Pratt and Whitney, 107 Nev. at 538-39, 815 P.2d at 603 (footnote added).
The primary distinction drawn by the majority between Pratt and Whitney and Oak Grove involved the fact
that a component part of one apartment unit damaged other units in the complex rather than a component part of
a single integrated entity (or apartment unit) causing injury to itself. This seemingly ignores the fact that Oak
Grove does not, in its dictum on the subject, draw any distinction between damages to the individual units in
which the fittings were installed and damages caused by any one fitting to any or all of the other units. Further,
in Oak Grove, the offending fittings had been installed in all of the separate apartment units. Thus, we cannot
determine from the facts of Oak Grove whether the water damage resulting from any one fitting caused damage
to other property, to wit: the other units.
Secondly, the Pratt and Whitney majority observes that the economic loss doctrine was never intended to
apply to construction projects that reflect the products and efforts of so many different manufacturers, laborers,
crafts, supervisors and inspectors in the creation of an essentially permanent place of habitation. Pratt and
Whitney, 107 Nev. at 539, 815 P.2d at 603. Of course, this comment applies with equal force to the manufacture
of an airplanea much more complex entity than many commercial or residential buildings.
Third, the Pratt and Whitney majority notes that commercial products that injure themselves are readily
insurable, and thus, suitable for inclusion in the economic loss doctrine. This distinction is questionable because
residential and commercial structures are also readily covered by first-party casualty insurance.
Thus, the distinctions attempted did not demonstrate a sufficient doctrinal reason as a matter of public policy
to justify variant treatment for these purposes between apartment, commercial or home construction on one
hand, and complex conveyances such as automobiles, steamships or airplanes on the other.
such as automobiles, steamships or airplanes on the other. Again, airplanes as well as apartment complexes or
houses are self-contained entities that are the end result of an integration of hundreds, if not thousands of
component parts. Thus, in my view, Pratt and Whitney cannot be reconciled with this court's decision in Oak
Grove.
Notwithstanding the statements made in Pratt and Whitney, and as noted by the majority in this case, there
are numerous cases from other jurisdictions in which the economic loss doctrine is applied to construction defect
cases. Given the parallel policies that could apply to both construction and products defects cases, Pratt and
Whitney should have rejected the dictum in Oak Grove as no longer valid. I therefore agree that the economic
loss doctrine is generally implicated when a product or an integrated piece of construction injures itself.
8
This,
of course, is the position taken by the U.S. Supreme Court in East River.
9
Thus, Stern, Central Bit, Arco and
Pratt and Whitney (excepting its attempt to distinguish Oak Grove) all represent a sound and consistent
application of the economic loss doctrine.
10

However, in the situation alluded to by the majority in Pratt and Whitney, where a defect in one unit of a
multiple occupancy structure causes property damage throughout the building, I would leave the issue of
whether other property has been damaged to a case-by-case factual analysis. Such factual issues should turn on
whether each unit is self-contained. Thus, to the extent that the same alternate scenario exists in this
case,
__________

8
The reason I would not overturn Pratt and Whitney is that it would be difficult, if not impossible, to
determine where to draw the line as to when the doctrine would be implicated when a commercial product
injures itself. For example, an electric lamp can destroy itself because of an electric malfunction and is made up
of component parts. No one could seriously debate whether the economic loss doctrine applies to a suit against
the wiring manufacturer for loss of the lamp or loss of income from its projected use.

9
This doctrine has recently been refined in Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875
(1997), in which economic losses were deemed recoverable where the product, a steamship, injured other
property, to wit: equipment added to the original assembly of a ship by the original purchaser.

10
The majority correctly overturns Charlie Brown Construction Co. v. Boulder City, 106 Nev. 497, 797 P.2d
946 (1990). Charlie Brown is the one case that cannot be reconciled with any of our other decisions on the
economic loss doctrine. Citing Hadley v. Baxendale, 156 Eng. Rep. 145 (1854), Charlie Brown, at least by
implication, embraced in the tort context a rule of general foreseeability that has historically applied in contract
but not in tort. Thus, taken literally, Charlie Brown arguably eviscerated the economic loss doctrine. I am certain
this was not the intent of this court in Charlie Brown. Thus, it is important that we finally eliminate any
misconceptions in this regard.
same alternate scenario exists in this case, I would partially dissent from the majority.
Going further, when an identifiable component part added to the original product or an original piece of
construction injures or damages all or part of the remainder, the added component is other property that may
be defective from a negligence or strict liability standpoint. Thus, the added component injures other property
for tort recovery purposes. See Worrell v. Barnes, 87 Nev. 204, 484 P.2d 573 (1971), Saratoga and the fourth
corollary discussed above.
11
Again, this notion would seem to apply equally well to products and construction
litigation.
Worrell v. Barnes
According to the majority, Worrell v. Barnes wrongly held that contractors were not in the business of
manufacturing or selling products within the ambit of section 402A of the Restatement (Second) of Torts.
The property damage in Worrell resulted from a residential fire allegedly caused by a portion of a heating
system installed by the defendant during a remodeling project. This court concluded that the contractor
manufactured and sold a product,' which included a defective gas fitting and the portion of the gas water
heating system installed during the remodeling project. Worrell, 87 Nev. at 208, 484 P.2d at 576. While the
contractor did not actually manufacture the fitting, he was deemed in Worrell to have manufactured a product, to
wit: the fitting and, at least impliedly, the newly installed portion of the plumbing system. Interestingly, the
Worrell court implied that the doctrine of strict tort liability would apply to any kind of defect in construction,
regardless of whether the defect was part of the original construction, or added subsequent to completion:
The ordinary purchaser is not more capable of detecting a defect in a chimney flue or vent of a heating
apparatus (Schipper, supra) or faulty plumbing covered by a concrete slab foundation (Humber, supra),
in a house erected by a builder of two than in one constructed by a quantity builder of 200. Avner v.
Longridge Estates, 77 Cal.Rptr. 633 (Cal.App. 1969); 1969-70 Annual Survey of American Law, p. 474;
13 A.L.R.3d 1057, 1097 (1967). When a plaintiff proves that while he was using an instrumentality in a
way it was intended to be used he was injured as a result of a defective design and/or manufacture which
made the instrumentality unsafe for its intended use, and that he was unaware of the defect his burden has
been accomplished. Restatement of Torts 2d, Comment G, 402A. An owner relies upon the skill of
the fabricator of a piping system,
__________

11
See Note 2.
skill of the fabricator of a piping system, and he has a right to expect freedom from injury on the basis of
the fabricator's superior knowledge.
12

Worrell, 87 Nev. at 207, 484 P.2d at 575-76 (footnote added).
The Worrell court did not reach the issue of whether the economic loss rule was implicated in a construction
defects suit where the finished or remodeled construction damaged itself. However, for future reference, an
analysis of the economic loss doctrine under the facts of Worrell is instructive.
To compare, the primary damages deemed recoverable in tort via negligence or strict liability in Oak Grove
were arguably economic losses. Thus, notwithstanding the language quoted immediately above, had the gas
fitting in Worrell been part of the original construction, the damages would have been restricted to economic
losses. However, the losses actually sustained as described in Worrell were not pure economic losses under East
River, Pratt and Whitney and Saratoga because an outside component was incorporated into the original
construction, which caused damage to other property. Therefore, in my view, had we reached the issue of
whether pure economic losses had been sustained in Worrell, the outcome would have remained unchanged. I
also believe that the component parts or subsystems of a house or other building implicate strict liability and
negligence issues when personal injuries from construction defects have been sustained or where the defective
building component damages other property, such as a free standing neighboring dwelling.
I concede that the fact pattern in Worrell does not fit neatly within the Restatement Second formulation.
However, I would leave Worrell intact and interpret it as invoking a salutory and beneficial public policy
allowing recovery when a defect in an addition to a structure causes property damage to the remaining whole, or
causes personal injuries, or causes property damage to other structures or self-contained but attached units.
CONCLUSION
While I agree that the economic loss rule is implicated in construction defect litigation,
__________

12
I take issue with the majority's reference to Casa Clara v. Charley Toppino, 620 So. 2d 1244, 1247 (Fla.
1993). New home purchasers do not generally have a meaningful ability to inspect houses for defects.
Further, unlike the situation of a purchaser of a pre-owned residence, a new homebuyer's power to bargain
over price in the modern market can only be described as marginal at best. Thus, I would reject such
considerations in determining the efficacy of applying the economic loss doctrine in this context.
struction defect litigation, I believe that application of the rule should be limited as suggested above.
13

Rose, C. J., dissenting:
I dissent to the application of the economic loss doctrine to construction defect cases. While our prior
decisions in this area of the law are neither consistent nor uniformly well reasoned, they do show a clear
reluctance to apply the economic loss doctrine to construction defect cases and, in dicta, expressly state just that.
This court first expressed its reluctance to extend the economic loss doctrine to construction defect cases in
Oak Grove Investors v. Bell & Gossett Co., 99 Nev. 616, 617, 668 P.2d 1075, 1077 (1983). In Oak Grove, a
defective plumbing and heating system caused water leakage and damage throughout an apartment complex. The
district court granted summary judgment, concluding that there was no material issue of fact concerning whether
the plumbing fitting manufactured by Bell & Gossett was defective and whether the statute of limitations
precluded recovery. Id. at 620, 668 P.2d at 1077. We reversed the district court order granting summary
judgment, concluding that there were triable issues of material fact as to whether the manufacturer's failure to
warn may have rendered the product defective, and whether the statute of limitations had run. Id. at 625, 668
P.2d at 1081.
Although in Oak Grove the district court did not rule on the applicability of the economic loss doctrine, in
dicta we refused to extend the economic loss doctrine by stating:
the defective plumbing and heating system caused substantial leakage of water throughout, and damage
to, the apartment [sic] within the . . . complex. The amount of property damage sustained is a question
for the finder of fact. Appellant is not seeking to recover purely economic losses, and therefore has stated
causes of action in negligence and strict liability.
99 Nev. at 625, 668 P.2d at 1080-81 (citations omitted). While not expansive in its reasoning, the Oak Grove
court clearly refused to apply the economic loss doctrine to a construction defect case.
__________

13
In an appropriate future case, we may be called upon to determine whether lack of privity of contract
between property owners and remote subcontractors bars recovery under various implied warranties when a
defect in construction causes a problem that is restricted to economic loss (i.e., where the claimant is restricted to
his, her or its recovery in contract). To the extent that building construction is treated by the majority as
analogous to an integrated product for economic loss considerations, we may wish to examine whether this
court's ruling in Hiles v. Johnson Pump Co., 93 Nev. 73, 560 P.2d 154 (1977), should apply by analogy to
implied warranty claims made in this context. This issue is not before us because appellants' warranty claims
were voluntarily dismissed below.
refused to apply the economic loss doctrine to a construction defect case.
Many years later, in Charlie Brown Construction Co. v. Boulder City, 106 Nev. 497, 797 P.2d 946 (1990),
we again rejected the applicability of the economic loss doctrine to construction defect cases, and thereby
permitted recovery of tort damages. Although we rejected the economic loss doctrine on the basis that the
damages sustained were foreseeable, we expressed a clear intent to permit tort damages in a construction defect
case:
Brown and Delta are directly injured parties seeking direct recovery from the tortfeasor. It is not
consequential damages they seek but direct damages from the failure to perform a mandatory act. Our
citation in [Local Joint Exec. Bd. v. Stern, 98 Nev. 409, 651 P.2d 637 (1982)] to The Restatement
(Second) of Torts 766 (1979) . . . makes it clear that the prohibition does not extend to this
circumstance [where city failed to require payment bond that would have secured payment to two
subcontractors after general contractor became insolvent].
Id. at 508, 797 P.2d at 953.
Further evidence of this court's long-standing reluctance to extend the economic loss doctrine to construction
defect cases is found in National Union Fire Insurance v. Pratt and Whitney, 107 Nev. 535, 540, 815 P.2d 601,
604 (1991). In Pratt and Whitney, an entire aircraft was destroyed because of a defective engine. Id. at 540 816
P.2d at 604. While the majority concluded that the economic loss doctrine applied and precluded recovery on
tort theories, it carefully explained that it was not overruling the Oak Grove decision and that the economic loss
doctrine should not preclude recovery on tort theories in construction defect cases. Id. at 538-39, 815 P.2d at
603. The majority in Pratt and Whitney distinguished construction defect cases, where the economic loss
doctrine was not applicable, from those cases involving a single integrated product that injured itself' :
The apartment complex [in Oak Grove] consisted of a number of separate apartment units that were each
self-contained and constructed for the separate occupancy of the end users. Indeed, this court has not yet
entered the fray among courts as to whether even a house constitutes a product for purposes of the law
of strict products liability, let alone an entire apartment complex. We deem it safe to conclude, however,
that the economic loss doctrine was never intended to apply to construction projects that reflect the
products and efforts of so many different manufacturers, laborers, crafts, supervisors and inspectors
in the creation of an essentially permanent place of habitation.
sors and inspectors in the creation of an essentially permanent place of habitation.
Id. at 539, 815 P.2d at 6023 (citation omitted) (emphasis added).
I appreciate the attempt to establish a clear line of demarcation between contract and to damages in the
majority opinion, even though it is difficult in construction defect cases. My concern in doing this is that there
will be times where unusual factual situations will fall between the clearly defined recovery theories of contract
and tort and leave a homeowner of a defectively constructed home without a remedy. Under the majority's
opinion and the present state of the law, a subsequent purchaser of a condominium with a latent defect created
by a subcontractor and found five years after construction will fall in that category if the contractor has gone
bankrupt or out of business. This would occur because tort law would be inapplicable because of the economic
loss doctrine and contract damages would provide no viable vehicle for recovery because the homeowner is not
in privity with the subcontractor, the contractor is defunct and the construction bond long since exonerated. The
owner of the defective condominium would have no viable remedy against the subcontractor even though he
may be in business and making millions of dollars.
To avoid situations like this from occurring, I see no problem with letting contract and tort theories of
recovery apply to construction defect cases as has been done by several states. See Cosmopolitan Homes, Inc. v.
Weller, 663 P.2d 1041 (Colo. 1983); Kristek v. Catron, 644 P.2d 480 (Kan. Ct. App. 1982); Keyes v. Guy
Bailey Homes, Inc., 439 So. 2d 670 (Miss. 1983); Juliano v. Gaston, 455 A.2d 523 (N.J. Super. Ct. App. Div.
1982); McMillan v. Brune-Harpenau-Torbeck Builders, Inc., 455 N.E.2d 1276 (Ohio 1983); Blake v. Doe, 623
N.E.2d 1229 (Ohio Ct. App. 1993); Moxley v. Laramie Builders, Inc., 600 P.2d 733 (Wyo. 1979). While legal
theories of recovery may overlap somewhat in any given construction defect case, I see no practical harm in this.
Before recovery can be made, proof that the contractor, subcontractor or supplier was negligent must be
established and no plaintiff is entitled to more than one recovery no matter how many theories of recovery may
be applicable. See Ambassador Hotel Co. v. Wei-Chuan Inv., 189 F.3d 1017 (9th Cir. 1999); Bradford v. Vento,
997 S.W.2d 713 (Tex. App. 1999). My clear preference is to provide a remedy, be it tort or contract, in all
construction defect cases whether the loss is considered the result of a breach of contract or negligent conduct.
This can be done simply by refusing to apply the economic loss doctrine to construction defect cases.
Moreover, in its sweeping application of the economic loss doctrine,
trine, the majority narrows the long-standing exception to NRS 41.033, Nevada's governmental immunity statute,
that this court created in Butler v. Bogdanovich, 101 Nev. 449, 705 P.2d 662 (1985), and reaffirmed in Lotter v.
Clark County Board of Commissioners, 106 Nev. 366, 793 P.2d 1320 (1990) and Tahoe Village Homeowners
Association v. Douglas County, 106 Nev. 660, 799 P.2d 556 (1990). In the aforementioned cases, we declared
that governmental immunity will not bar a tort action against the government if it failed to act reasonably after
learning of a hazard. Butler, 101 Nev. at 451, 705 P.2d at 663; Lotter, 106 Nev. at 369, 793 P.2d at 1322; Tahoe
Village, 106 Nev. at 662, 799 P.2d at 557-58. In this prior precedent, governmental conduct deemed
unreasonable included an inspector's approval of a contractor's work with knowledge of its defective condition.
See id. Without explicitly overruling Butler, Lotter, or Tahoe Village, the majority eliminates the very loss
sought in these type of cases, property damage. Effectively, this line of authority is eliminated by today's
opinion.
The economic loss doctrine is a judicial creationit is not a statute that we are compelled to follow. It is a
principle of law we can adopt or reject depending on what better serves Nevadans. With so much hasty
construction taking place in Nevada today, I think the better path would be to arm our home purchasers with all
available remedies, when faced with a defectively constructed home, rather than the one taken by the majority
today. I respectfully dissent.
____________
116 Nev. 282, 282 (2000) Chen v. State, Gaming Control Board
RICHARD CHEN, Appellant, v. NEVADA STATE GAMING CONTROL BOARD and MONTE CARLO
RESORT & CASINO, Respondents.
No. 31959
March 9, 2000 994 P.2d 1151
Appeal from a district court order denying review of a Nevada Gaming Control Board decision in a patron
dispute. The Board allowed the casino to retain appellant Richard Chen's $40,400 blackjack winnings. Eighth
Judicial District Court, Clark County; Jack Lehman, Judge.
Casino patron sought judicial review of Gaming Control Board decision allowing the casino to retain patron's
$40,400 blackjack winnings. The district court denied petition for judicial review, and patron appealed. The
supreme court, Shearing, J., held that casino failed to show either that it detrimentally relied on patron's false
passport or that his misrepresentation was a proximate cause of casino's damages.
false passport or that his misrepresentation was a proximate cause of casino's damages.
Maupin, J., dissented.
Lyles & Hawley, Las Vegas, for Appellant.
Steven A. Boelhouwer, Carson City, for Respondent Gaming Control Board.
Kevin J. Blair, General Counsel, Las Vegas, for Respondent Monte Carlo Resort & Casino.
1. Gaming.
While the supreme court shows deference to Gaming Control Board decisions on appeal, the court will reverse where the Board's
decision is arbitrary, capricious, or contrary to law.
2. Fraud.
To establish fraud, a plaintiff must show that: (1) the defendant provided a false representation of a material fact, which he knew
to be false; (2) the defendant intended the plaintiff to rely on the misrepresentation; (3) the plaintiff detrimentally relied on the
misrepresentation; and (4) the misrepresentation proximately caused damages.
3. Gaming.
Casino required a patron seeking more than $10,000 in playing chips to present identification only for regulatory compliance,
rather than to determine whether the patron was a card counter, and, thus, there was no evidence that casino detrimentally relied on
card counter's false passport when it allowed him to play blackjack.
4. Gaming.
Card counter's skill in playing blackjack, rather than his misrepresentation of his identity when he presented a false passport to
obtain playing chips, was the proximate cause of his blackjack winnings, for purposes of casino's claim to winnings on the basis of
fraud. The false identification allowed the card counter to receive $44,000 in chips, but it did not cause him to win.
OPINION
Appellant Richard Chen argues that the Nevada Gaming Control Board erred by allowing the Monte
Carlo Resort & Casino to retain his blackjack winnings of $40,400. Chen contends that the Monte Carlo
is unable to show either that it detrimentally relied on Chen's false passport or that Chen's
misrepresentation was the proximate cause of the Monte Carlo's damages.
misrepresentation was the proximate cause of the Monte Carlo's damages. We agree.
The facts in this case are not in dispute. Chen, a card counter,
1
entered the Monte Carlo and exchanged
$29,000 in cash for casino chips. Monte Carlo personnel asked Chen for identification, and Chen gave them a
fictitious Burma passport. Chen played blackjack for several hours, quit, and then returned during the graveyard
shift to resume play. At that time, he exchanged another $15,000 in cash for playing chips.
As Chen's winnings mounted, a Monte Carlo pit supervisor recognized Chen as a card counter. The Monte
Carlo terminated Chen's playing and instructed him to cash in his chips. Chen's chips totaled $84,400. Again,
Monte Carlo staff requested Chen's identification, and this time they noticed it was false.
An agent of the Nevada Gaming Control Board arrived at the Monte Carlo and spoke with Chen. Chen
admitted that the Burma passport was false and revealed his true identity. The agent then instructed the Monte
Carlo to provide Chen with a receipt in the amount of $84,400 pending a criminal investigation. Two
investigations uncovered no crime, and the agent told the Monte Carlo it could release the full $84,400 to Chen.
However, the Monte Carlo only returned $44,000 to Chen, the amount he had exchanged for chips.
Unsatisfied with the investigator's recommendation, the Monte Carlo filed a petition for reconsideration with
the Gaming Control Board. The Monte Carlo's petition was successful, and the Gaming Control Board denied
Chen his $40,400 in winnings. The district court denied Chen's petition for judicial review. We reverse.
DISCUSSION
[Headnotes 1, 2]
While this court shows deference to Gaming Control Board decisions on appeal, we will reverse where the
Board's decision is arbitrary, capricious, or contrary to law. See Redmer v. Barbary Coast Hotel & Casino, 110
Nev. 374, 378, 872 P.2d 341, 378 (1994). In this case, the Board's decision hinges on whether Chen committed a
fraud on the Monte Carlo. To establish fraud, the Monte Carlo must show that Chen provided a false
representation of a material fact, which he knew to be false; that Chen intended the Monte Carlo to rely on the
misrepresentation; that the Monte Carlo detrimentally relied on the misrepresentation; and that the
misrepresentation proximately caused damages. See Lubbe v. Barba, 91 Nev. 596,
__________

1
Card counting is a mathematical process which enables the player to achieve better odds when playing
blackjack.
Barba, 91 Nev. 596, 599, 540 P.2d 115, 117 (1975). We address the issues of detrimental reliance and
proximate cause of damages.
[Headnotes 3, 4]
The Monte Carlo did not show either that it detrimentally relied on Chen's misrepresentation or that Chen's
misrepresentation was the proximate cause for the casino's damages for two reasons. First, the Monte Carlo
requires a patron seeking more than $10,000 in playing chips to present identification only for regulatory
compliance rather than to determine whether the patron is a card counter.
2
The Monte Carlo has no policy
instructing casino employees to cross-check the patron's identification with any sources that might identify card
counters. Thus, there is no evidence that the Monte Carlo detrimentally relied on Chen's false passport when it
allowed him to play blackjack. Second, Chen's skill in playing blackjack, rather than his misrepresentation of
identity, was the proximate cause of his winnings. The false identification allowed Chen to receive $44,000 in
chips, but it did not cause Chen to win. Thus, we hold that the Gaming Control Board's determination that Chen
committed fraud is contrary to law because the Monte Carlo did not establish all of the elements of fraud.
We reverse the order of the district court denying Chen's petition for judicial review and remand this matter
to the district court. On remand, the district court shall grant Chen's petition and direct the Gaming Control
Board to award Chen his $40,400 in blackjack winnings.
3

Agosti and Leavitt, JJ., concur.
Maupin, J., dissenting:
In my view, the decision of the Nevada Gaming Control Board was not arbitrary, capricious or contrary to
law.
This case presents a conflict between two inconsistent public policies that have developed over the years
with regard to the gaming industry. On one hand, gaming establishments have the unquestioned right to protect
themselves against so-called card counters who have developed expertise in the game of blackjack
(twenty-one). On the other hand, neither card counting nor the use of a legal subterfuge such as a
disguise to gain access to this table game is illegal under Nevada law.
__________

2
Nevada Gaming Regulation 6A requires that gaming patrons present identification and complete a currency
transaction report, which is submitted to the Board within fifteen days when more than $10,000 worth of chips is
purchased.

3
The Honorable Robert E. Rose, Chief Justice, and The Honorable Cliff Young, and The Honorable Nancy
Becker, Justices, voluntarily recused themselves from the decision of this matter.
nor the use of a legal subterfuge such as a disguise to gain access to this table game is illegal under Nevada law.
I conclude, however, that the misrepresentation here, the use of a fraudulent passport for identification, was not a
legal subterfuge and enabled appellant access to high stakes play for the purpose of frustrating legitimate
attempts by the respondent to prevent this from occurring.
Certainly, appellant would have needed no identification to play if he had not sought chips valued in excess
of $10,000.00. However, playing without showing fraudulent identification involves no fraud or other illegal
activity. While respondent did not generally rely on identification via passport or otherwise to allow
participation in table games, Chen's access to large denominations of gaming tokens could not have occurred in
absence of the fraud. Therefore, the misrepresentation was specific and material to the caliber of play in which
appellant sought to become engaged. Therefore, I would affirm the decision below.
____________
116 Nev. 286, 286 (2000) Bd. of Gallery of History v. Datecs Corp.
BOARD OF GALLERY OF HISTORY, INC., Also Known as AMERICAN MUSEUM OF HISTORICAL
DOCUMENTS, CHARTERED, a Nevada Corporation, Appellant, v. DATECS CORPORATION, a
Nevada Corporation dba FORWARD EDGE TECHNOLOGIES, and SOFTWARE SERVICES, INC.,
a Nevada Corporation, a Wholly Owned Subsidiary of DATECS CORPORATION, Respondents.
No. 27865
March 9, 2000 994 P.2d 1149
Appeal from an order granting a motion for attorney fees and costs. Eighth Judicial District Court, Clark
County; Gerard J. Bongiovanni, Judge.
After the supreme court's dismissal of the appeal in a contract dispute, the district court awarded
supplemental attorney fees and costs to the prevailing party. Appeal was taken. The supreme court held that: (1)
the district court lacked authority to award attorney fees and costs on appeal, and (2) after dismissal of the
appeal, the district court lacked authority to award attorney fees and costs for defending against post-trial
motions in the district court.
Reversed.
Croteau & Shawhan, Las Vegas, for Appellant.
Christensen & Boggess, Las Vegas, for Respondents.
1. Costs.
District court lacked authority under appellate rules to award supplemental attorney fees and costs on appeal. NRAP 38(b).
2. Costs.
Attorney fees are not recoverable absent a statute, rule, or contractual provision to the contrary.
Supreme court's order dismissing the appeal and specifically holding that appellant's conduct on appeal did not merit sanctions
was law of the case, precluding the district court from making a contrary finding.
4. Costs.
Supreme court's award of fees for defending against a frivolous appeal is discretionary. NRAP 38(b).
5. Costs.
District court lacked statutory authority, after dismissal of appeal, to award appellee supplemental attorney fees for defending
against appellant's post-trial motions in the district court. NRS 18.010(2)(b).
6. Costs.
The absence of a ruling by the district court awarding the attorney fees and costs requested by prevailing party constituted a denial
of the request.
Supreme court's affirmance of district court's denial of award of attorney fees and costs to prevailing party became the law of the
case, thereby precluding district court from awarding supplemental attorney fees and costs to prevailing party for defending against
opposing party's post-trial motions in the district court. NRS 18.010.
OPINION
Per Curiam:
The issue before this court is the authority of the district court to award attorney fees and costs, after the
appeal from the final judgment in the action was dismissed by this court. We conclude that the district court
had no such authority in this case.
In a contract dispute between Datecs Corporation (Datecs) and Board of Gallery of History, Inc.
(Gallery), the district court found in favor of Datecs and awarded it a judgment in the amount of
$31,872.84 plus $5,000.00 in attorney fees and $1,365.70 in costs. The district court awarded the attorney
fees pursuant to NRS 18.010(2)(b) and costs pursuant to NRS 18.020(3).
After making several unsuccessful post-trial motions, Gallery appealed the judgment and the district
court's denial of its post-trial motions.
trial motions. This court affirmed the district court's judgment, including the award of attorney fees and costs.
This court also concluded that Gallery's conduct on appeal did not merit imposition of sanctions and expressly
rejected Datecs's request for attorney fees pursuant to NRAP 38(b).
After the dismissal of Gallery's appeal, Datecs moved the district court for supplemental attorney fees and
costs incurred in enforcing and protecting the Judgment from the Post-Trial Motions and Defendant's Appeal.
The district court found that Gallery's post-trial motions and the appeal were actions undertaken without
reasonable ground or to harass and awarded Datecs an additional $7,500.00 in attorney fees pursuant to NRS
18.010(2)(b) and $697.53 in costs pursuant to NRAP 39(a). Gallery appeals from the district court's order.
DISCUSSION
[Headnote 1]
Gallery contends that the district court lacked authority to award the additional attorney fees and costs. We
agree.
[Headnote 2]
Attorney fees are not recoverable absent a statute, rule, or contractual provision to the contrary. See
Rowland v. Lepire, 99 Nev. 308, 315, 662 P.2d 1332, 1336 (1983). There is no provision in the statutes
authorizing the district court to award attorney fees incurred on appeal. NRAP 38(b) authorizes only this court to
make such an award if it determines that the appeals process has been misused.
1

[Headnotes 3, 4]
Furthermore, this court's order dismissing the original appeal specifically held that Gallery's conduct on
appeal did not merit sanctions.
2
This is the law of the case and the district court was without authority to make
a contrary finding.
__________

1
NRAP 38(b) provides:
In any civil matter, when an appeal has frivolously been taken or been processed in a frivolous
manner; when circumstances indicate that an appeal has been taken or processed solely for purposes of
delay, when an appeal has been occasioned through respondent's imposition on the court below; or
whenever the appellate processes of this court have otherwise been misused, this court may, on its own
motion, require the offending party to pay, as costs on appeal, such attorney fees as it deems appropriate
to discourage like conduct in the future.

2
The apparent inconsistency between this court's affirmance of the district court's finding that the defense
was frivolous and this court's failure to find the appeal frivolous is illusory. The district court's finding was based
on the arguments and proceedings in district court, while this court's finding was based on the arguments in this
court. Furthermore, this court's award of fees under NRAP 38(b) is discretionary.
In general, where an appellate court deciding an appeal states a principal [sic] or rule of law, necessary to
the decision, the principle or rule becomes the law of the case and must be adhered to throughout its subsequent
progress both in the lower court and upon subsequent appeal. LoBue v. State ex rel. Dep't Hwys., 92 Nev. 529,
532, 554 P.2d 258, 260 (1976).
[Headnote 5]
The district court also awarded Datecs attorney fees for defending Gallery's post-trial motions, purportedly
pursuant to NRS 18.010(2)(b). However, the district court was not authorized to award attorney fees for
defending the post-trial motions after the dismissal of the appeal in this case.
[Headnote 6]
Datecs's opposition to Gallery's post-trial motions in district court had included a countermotion for all
attorneys fees and costs incurred in opposing these Motions, citing no authority, other than suggesting that an
NRCP Rule 11 sanction might be appropriate. Although the district court did not expressly deny Datecs's
countermotion at the time it decided Gallery's motions, it made no findings which would justify an award of
attorney fees and costs. The absence of a ruling awarding the requested expenses constitutes a denial of the
claim. See, e.g., McClure v. Moore, 565 So. 2d 8, 11 (Ala. 1990) (failure to rule on request for expenses
constitutes a denial of that claim).
[Headnote 7]
On appeal, this court reviewed and affirmed the district court's order. In so doing, this court also affirmed the
district court's decision not to award Datecs attorney fees or costs incurred in opposing the post-trial motions in
district court. Thus, the issue of whether Datecs could recover attorney fees and costs relating to the post-trial
motions was finally adjudged by this court and became the law of the case. Although there is no time limit
specified in NRS 18.010 for applications for fees, litigants do not have the option of relitigating the issue after it
has already been determined.
Accordingly, the district court's post-appeal order awarding attorney fees and costs incurred by Datecs in
prosecuting the appeal and in opposing Gallery's post-trial motions was in excess of its jurisdiction; the district
court's order is reversed.
____________
116 Nev. 290, 290 (2000) State, Div. of Insurance v. State Farm
THE STATE OF NEVADA, DIVISION OF INSURANCE, COMMISSIONER OF INSURANCE, ALICE
MOLASKY, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and
STATE FARM FIRE AND CASUALTY COMPANY, Respondents.
No. 31102
March 9, 2000 995 P.2d 482
Appeal from an order of the district court granting summary judgment in a declaratory relief action involving
the validity of an insurance regulation. Eighth Judicial District Court, Clark County; Mark W. Gibbons, Judge.
Automobile insurer brought declaratory judgment action challenging validity of regulation defining
chargeable accidents for the purpose of cancellation of coverage as an accident for which the insured is more
than fifty percent at fault. The district court granted insurer's motion for summary judgment and permanently
enjoined the regulation's enforcement, and Division of Insurance appealed. The supreme court held that
regulation conflicted with statutes barring adverse action if the insured is not at fault and requiring insurers to
pay covered claims when the insured's responsibility for an accident is fifty percent or more, rendering the
regulation invalid.
Affirmed.
Frankie Sue Del Papa, Attorney General, and Edward T. Reed, Deputy Attorney General, Carson City, for
Appellant.
Pearson, Patton, Shea, Foley & Kurtz, Las Vegas, for Respondents.
Review in supreme court from a district court's interpretation of a statute is de novo.
Matters involving the construction of an administrative regulation are a question of law subject to independent appellate review.
3. Administrative Law and Procedure; Statutes.
When determining the validity of an administrative regulation, courts generally give great deference to an agency's interpretation
of a statute that the agency is charged with enforcing. However, a court will declare a regulation invalid when the regulation violates
the constitution, conflicts with existing statutory provisions or exceeds the statutory authority of the agency or is otherwise arbitrary
and capricious. NRS 233B.110.
4. Statutes.
Even a reasonable agency interpretation of an ambiguous statute may be stricken by a court when a court determines that the
agency interpretation conflicts with legislative intent.
5. Statutes.
Where the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, there is no room for
construction, and the courts are not permitted to search for its meaning beyond the statute itself.
6. Statutes.
Where a statute has no plain meaning, a court should consult other sources such as legislative history, legislative intent and
analogous statutory provisions.
7. Statutes.
Statutes are said to be in para materia when they involve the same classes of persons or things or seek to accomplish the same
purpose or object.
8. Administrative Law and Procedure; Statutes.
Whenever possible, supreme court will interpret a rule or statute in harmony with other rules or statutes.
9. Statutes.
When the legislature enacts a statute, supreme court presumes that it does so with full knowledge of existing statutes relating to the
same subject.
10. Insurance.
Legislature intended that the term at fault contained in statute barring the cancellation of an automobile insurance policy as a
result of claim for an accident for which the insured is not at fault means a chargeable accident does not occur unless the insured is
fifty percent at fault. NRS 687B.385.
11. Insurance.
Regulation barring automobile insurers from taking underwriting action against an insured that is fifty percent at fault in
connection with an accident conflicted with statutes barring adverse action if the insured is not at fault and requiring insurers to pay
covered claims when the insured's responsibility for an accident is fifty percent or more, rendering the regulation invalid. NRS 41.141,
687B.385; NAC 690B.230(2).
OPINION
Per Curiam:
State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Company (State
Farm) filed a declaratory relief action below contesting the validity of a 1996 amendment to NAC
690B.230(2). State Farm argued that the amendment, promulgated by the Division of Insurance of the State
of Nevada (Division), violated NRS 679B.130(1) by creating a definition of chargeable accident which
modified, or conflicted with, existing statutes. The Division denied the allegations and asserted that the
regulation, as amended, was a reasonable requirement related to the administration or effectuation of a
provision of the Nevada insurance code, namely NRS 687B.385.
State Farm filed a motion for summary judgment. The district court concluded that NAC 690.230(2) did not
aid in the administration of NRS 687B.385 but was, in fact, in conflict with NRS 687B.385 as well as NRS
41.141, the Nevada comparative negligence statute. The district court granted State Farm's motion for summary
judgment and entered a permanent injunction against enforcement of the regulation. We agree with the
determinations of the district court and for the reasons set forth below, we affirm the district court's order.
FACTS
NAC 690B.230 is one of a series of administrative rules designed to regulate transactions between insurers
and insureds. This specific regulation defines the term chargeable accidents for the purpose of underwriting,
rating, cancellation and renewal of automobile insurance coverages. NAC 690B.230(2), as amended in 1996,
reads as follows:
2. Each insurer shall file with the division its definition of a chargeable accident and shall use the
filed definition. The insurer's definition of a chargeable accident may include only those accidents for
which the insured is more than 50 percent at fault.
The regulation was promulgated for the purpose of enforcing NRS 687B.385, which provides:
An insurer shall not cancel, refuse to renew or increase the premium for renewal of a policy of
casualty or property insurance as a result of any claims made under the policy with respect to which the
insured was not at fault.
1

(Emphasis added.) Because the legislature did not define the phrase not at fault, the Division exercised its
rule-making authority under NRS 679B.130(1) to restrict the criteria that an insurance company could use in
determining fault under the statute.
Prior to the enactment of the regulation, State Farm instituted internal company policies that defined a
chargeable accident for purposes of canceling, renewing or increasing premiums pursuant to NRS 687B.385 to
mean any accident for which the insured was fifty percent or more at fault. State Farm sought declaratory relief
to resolve its differences over the Division's regulatory interpretation of NRS 687B.385.
__________

1
This statute was amended in 1997. The 1997 amendments did not alter the language regarding fault and
have no bearing on this opinion.
DISCUSSION
Standard of review
[Headnotes 1, 2]
Orders granting summary judgment are reviewed de novo. Bulbman, Inc. v. Nevada Bell, 108 Nev. 105,
110, 825 P.2d 588, 591 (1992). Further, [r]eview in this court from a district court's interpretation of a statute
is de novo. State, Dep't of Mtr. Vehicles v. Frangul, 110 Nev. 46, 48, 867 P.2d 397, 398 (1994). Finally,
matters involving the construction of an administrative regulation are a question of law subject to independent
appellate review. See SIIS v. Miller, 112 Nev. 1112, 1116, 923 P.2d 577, 579 (1996).
Statutory construction
[Headnote 3]
When determining the validity of an administrative regulation, courts generally give great deference to
an agency's interpretation of a statute that the agency is charged with enforcing. See State v. State Engineer,
104 Nev. 709, 713, 766 P.2d 263, 266 (1988) (quoting Clark Co. Sch. Dist. v. Local Gov't, 90 Nev. 442, 446,
530 P.2d 114, 117 (1974)). However, a court will not hesitate to declare a regulation invalid when the regulation
violates the constitution, conflicts with existing statutory provisions or exceeds the statutory authority of the
agency or is otherwise arbitrary and capricious. See NRS 233B.110; Clark Co. Social Service Dep't v. Newkirk,
106 Nev. 177, 179, 789 P.2d 227, 228 (1990); Roberts v. State, 104 Nev. 33, 37, 752 P.2d 221, 223 (1988).
[Headnote 4]
Finally, even a reasonable agency interpretation of an ambiguous statute may be stricken by a court when a
court determines that the agency interpretation conflicts with legislative intent. See Hotel Employees v. State,
Gaming Control Bd., 103 Nev. 588, 591, 747 P.2d 878, 880 (1987). Thus, the decision in this case must begin
with an analysis of NRS 687B.385, pursuant to which the regulation was promulgated.
[Headnotes 5, 6]
Where the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, there is
no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself.
State v. Jepsen, 46 Nev. 193, 196, 209 P. 501, 502 (1922), quoted in Erwin v. State of Nevada, 111 Nev. 1535,
1538-39, 908 P.2d 1367, 1369 (1995); Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 503, 797 P.2d
946, 949 {1990).
949 (1990). However, where a statute has no plain meaning, a court should consult other sources such as
legislative history, legislative intent and analogous statutory provisions. See Moody v. Manny's Auto Repair, 110
Nev. 320, 325, 871 P.2d 935, 938-39 (1994).
This court has previously determined that the exact meaning of the words at fault in NRS 687B.385 is not
clear and unmistakable. See State Farm Mut. v. Comm'r of Ins., 114 Nev. 535, 541, 958 P.2d 733, 736-37
(1998) (State Farm I). In State Farm I, we concluded that:
A reading of the legislative history as a whole shows that the legislature believed that an insured's
individual premium structure would be adversely affected by a claim only if the insured was at fault. The
legislators viewed the issue of fault, under NRS 687B.385, in the context of whether or not the insurance
company would be required to pay a claim against the insured.
Id. The legislative history also indicates that the legislature clearly understood that more than one person could
be at fault with regard to a single accident and that an accident should only be charged against an insured when
the insured's conduct was responsible in some form for the accident. See Hearings on A.B. 308 Before the
Nevada Assembly Committee on Commerce, 64th Leg. (Nev., March 25, 1987).
[Headnote 7]
The court in State Farm I then determined that NRS 687B.385 should be read in pari materia with NRS
41.141, the Nevada Comparative Negligence Statute. Statutes are said to be in para materia when they
involve the same classes of persons or things or seek to accomplish the same purpose or object. See Goldstein v.
State, 803 S.W.2d 777, 788 (Tex. App. 1991).
In State Farm I, we compared the provisions of NRS 41.141 with NRS 687B.385 and concluded that there
is a direct doctrinal connection between the resolution of a claim under the liability coverage of an auto
insurance policy and the determination of fault' pursuant to the statutory doctrine governing tort liability. State
Farm I, 114 Nev. at 542, 958 P.2d at 737. NRS 41.141 relates to the assignment of fault between parties to a
lawsuit and bars a plaintiff from recovery if the plaintiff's negligence is more than fifty percent responsible for a
covered accident. Thus, under NRS 41.141, a casualty liability insurer is required to pay a judgment where its
insured is determined to be fifty percent or more at fault in connection with an accident.
Based upon the foregoing analysis, the court concluded that State Farm's construction of the at fault
provision in NRS 6S7B.3S5 was reasonable and the Division could not impose a different
interpretation upon State Farm without first enacting a valid regulation in accordance the
the procedures of NRS chapter 233B,
687B.385 was reasonable and the Division could not impose a different interpretation upon State Farm without
first enacting a valid regulation in accordance with the procedures of NRS chapter 233B, the Administrative
Procedure Act (APA).
2

[Headnotes 8, 9]
We note that there are additional rules of statutory construction that apply in this instance. Whenever
possible, this court will interpret a rule or statute in harmony with other rules or statutes. Bowyer v. Taack, 107
Nev. 625, 627, 817 P.2d 1176, 1177 (1991); City Council of Reno v. Reno Newspapers, 105 Nev. 886, 892, 784
P.2d 974, 978 (1989). Finally, when the legislature enacts a statute, this court presumes that it does so with full
knowledge of existing statutes relating to the same subject. City of Boulder v. General Sales Drivers, 101 Nev.
117, 118-19, 694 P.2d 498, 500 (1985). NRS 41.141 existed when the legislature enacted NRS 687B.385.
[Headnote 10]
Although the subject matter of NRS 687B.385 is not precisely the same as NRS 41.141, the two concepts of
fault are so closely related that they should be construed harmoniously. Accordingly, we conclude that the
legislature intended that the term at fault contained in NRS 687B.385 means a chargeable accident does not
occur unless the insured is fifty percent at fault.
Having determined the legislative intent behind NRS 687B.385, we must now examine the Division's
regulation, NAC 690B.230(2), to determine if it was enacted in accordance with the Division's authority under
NRS 679B.130. NRS 679B.130 provides in relevant part that [a] regulation shall not extend, modify or conflict
with any law of this state or the reasonable implications thereof.
[Headnote 11]
NAC 690B.230(2) forbids insurers to take any underwriting action against an insured that is fifty percent at
fault. Under NRS 41.141, insurers must pay a covered claim where the insured's responsibility for an accident is
fifty percent or more. The legislature, in its enactment of NRS 687B.385, intended to protect insureds from
re-rating premiums only when the insured bore no legal responsibility for an accident. Any regulation that
prohibits a casualty insurer from charging an accident against an insured even though the insured is legally liable
for the accident under NRS 41.141 is clearly in conflict with both NRS 687B.385 and 41.141.
__________

2
Although both State Farm and the Division argue that State Farm I is dispositive of this case, footnote 4 of
State Farm I specifically reserved the question of the validity of any promulgated regulation for a future date.
41.141. Therefore, we conclude that the Division exceeded its authority under NRS 679B.130 by promulgating
NAC 690B.230(2).
CONCLUSION
We conclude that the language of NAC 690B.230(2) that limits an insurer's definition of a chargeable
accident to those accidents for which the insured is more than fifty percent at fault is in conflict with NRS
687B.385. We further conclude that the conflict between NAC 690B.230(2) and NRS 687B.385 renders NAC
690B.230(2) invalid. Accordingly, we affirm the order of the district court.
____________
116 Nev. 296, 296 (2000) SIIS v. Perez
THE STATE INDUSTRIAL INSURANCE SYSTEM, nka EMPLOYERS INSURANCE COMPANY OF
NEVADA, an Agency of THE STATE OF NEVADA, Appellant, v. AURELIO PEREZ and FORREST
CONCRETE, Respondents.
No. 31760
March 9, 2000 994 P.2d 723
Appeal from a denial for judicial review which affirmed an appeals officer's determinations in a contested
workers' compensation case. Eighth Judicial District Court, Clark County; Gene T. Porter, Judge.
Workers' compensation insurer sought judicial review of appeals officer's reversal of insurer's de facto denial
of claim for permanent total disability benefits under the odd-lot doctrine. The district court affirmed the appeals
officer's determination. Insurer appealed. The supreme court, Shearing, J., held that: (1) claimant was not
required to submit medical evidence supporting his application to re-open his claim, and (2) letter to vocational
rehabilitation counselor from claimant's attorney qualified as an application for re-opening the claim.
Affirmed.
Lenard T. Ormsby, General Counsel, and Michael D. Wymer, Associate General Counsel, State Industrial
Insurance System, Carson City, for Appellant.
George T. Bochanis, Ltd., and Scott Schreiber and Kevin Johnson, Las Vegas, for Respondent Perez.
Forrest Concrete, Las Vegas, in Proper Person.
116 Nev. 296, 297 (2000) SIIS v. Perez
The construction of a statute is a question of law which the appellate court reviews de novo.
2. Workers' Compensation.
Factors other than physical impairment, including the worker's age, experience, training, and education, may be considered in
determining whether an injury qualifies a worker for permanent total disability benefits.
Claimant who had received a lump sum permanent partial disability award was not subject to statutory requirement of providing
medical evidence supporting an application to re-open a claim, where it was not new medical evidence that made claimant eligible for
permanent total disability benefits under the odd-lot doctrine, but instead limitations from his previous physical injury, combined with
non-medical intellectual and social factors, that made him unamenable to vocational rehabilitation. NRS 616C.390(2), (4),
616C.495(2), 616C.555.
Letter to vocational rehabilitation counselor from claimant's attorney qualified as an application for re-opening the claim, and the
failure of workers' compensation insurer to respond was, in effect, a denial of the claim, granting claimant the right to appeal. NRS
616C.390(2), (4), 616C.495(2), 616C.555.
OPINION
FACTS
On August 19, 1995, respondent Aurelio Perez injured his back in the course and scope of his
employment as a laborer with Forrest Concrete Company. Perez accepted a lump sum Permanent Partial
Disability (PPD) award of $14,721.51. Thereafter, he was referred to a vocational rehabilitation program
pursuant to NRS 616C.555. The program was unsuccessful, and therefore Perez claimed that he was entitled
to Permanent Total Disability (PTD) status under the odd-lot doctrine.
1
Perez made this request for
permanent total disability in a letter from his attorney to Delia Martinez, a rehabilitation counselor with the
Employers Insurance Company of Nevada
__________

1
The odd-lot doctrine is [a] doctrine which permits finding of total disability where claimant is not
altogether incapacitated for any kind of work but is nevertheless so handicapped that he will not be able to
obtain regular employment in any well-known branch of the competitive labor market absent superhuman
efforts, sympathetic friends or employers, a business boom, or temporary good luck. Black's Law Dictionary
1080 (6th ed. 1990). See Nevada Indus. Comm'n v. Hildebrand, 100 Nev. 47, 675 P.2d 401 (1984).
116 Nev. 296, 298 (2000) SIIS v. Perez
Employers Insurance Company of Nevada (EICON). EICON did not respond to this request. Perez appealed and
ultimately an appeals officer reversed EICON's de facto denial of Perez's claim for permanent total disability.
EICON contends that the appeals officer was without jurisdiction to entertain the claim for permanent total
disability status because Perez failed to comply with the formal re-opening procedures required by NRS
616C.495(2) and 616C.390(4). NRS 616C.495(2) provides:
If the claimant elects to receive his payment for a permanent partial disability in a lump sum . . . all of his
benefits for compensation terminate. His acceptance of that payment constitutes a final settlement of all
factual and legal issues in the case. By so accepting he waives all of his rights regarding the claim,
including the right to appeal from the closure of the case or the percentage of his disability, except:
(a) His right to reopen his claim according to the provisions of NRS 616C.390; and
(b) Any counseling, training or other rehabilitative services provided by the insurer.
NRS 616C.390(4) provides:
. . . [I]f an application to reopen a claim is made in writing within 1 year after the date on which the claim
was closed, the insurer shall reopen the claim only if:
(a) The application is supported by medical evidence demonstrating an objective change in the
medical condition of the claimant; and
(b) There is clear and convincing evidence that the primary cause of the change of circumstances is
the injury for which the claim was originally made.
(Emphasis added.)
EICON contends that the appeals officer had no jurisdiction to consider the claim for permanent total
disability because Perez failed to seek re-opening via the formalities required by NRS 616C.495(2) and that
Perez's letter seeking re-opening was deficient because it made no reference to any medical evidence. EICON
also contends that, to the extent that the letter is treated as initiating a formal re-opening process, there was no
objective medical evidence to support re-opening.
DISCUSSION
[Headnote 1]
The construction of a statute is a question of law which this court reviews de novo. See Maxwell v. SIIS, 109
Nev. 327, 329, 849 P.2d 267, 269 (1993).
116 Nev. 296, 299 (2000) SIIS v. Perez
There is no question that Perez did not include supporting medical evidence in his request for a change from
permanent partial disability to permanent total disability as is specified in NRS 616C.390(2). However, total
disability claims may have nonmedical, as well as medical components. After accepting his permanent partial
disability award, Perez was evaluated for vocational rehabilitation. The results showed that he had low
vocational aptitudes, a third-grade education and little English. At his request, he was nevertheless referred to
vocational programs, but was unsuccessful in developing a rehabilitation plan. The appeals officer made the
following findings:
21. That the testimony from the Claimant, as well as reporting from Ray Figeroa of ARC, indicated
that Claimant is a poor candidate for vocational rehabilitation because of his extremely low vocational
aptitude scores, his inability to communicate in the English language, his minimal formal education (3rd
grade) and very limited job background (exclusively construction).
22. In addition, Claimant testified that he has difficulty in seeing which would make him a poor
vocational rehabilitation candidate and that he has pain in his hands and his inability to move or separate
the right ring finger and pinky finger on his right hand which limits his manual dexterity.
23. That Claimant has shown by a preponderance of the evidence that he is a candidate and should be
provided with permanent total disability benefits pursuant to the odd-lot doctrine.
[Headnotes 2, 3]
Factors other than physical impairment may be considered in determining whether an injury qualifies a
worker for permanent total disability benefits. Nevada Indus. Comm'n v. Hildebrand, 100 Nev. 47, 51, 675 P.2d
401, 404 (1984). Such factors may include, among others, the worker's age, experience, training, and education.
Id. Here, the limitations from the previous physical injury, combined with the other non-medical intellectual and
social factors, made Perez eligible for permanent total disability after his permanent partial disability award. It
was not new medical evidence which made Perez eligible for permanent total disability. It was his old disability
plus the newly discovered factors which made him eligible. Therefore the requirement in NRS 616C.390(2) for
medical evidence was not appropriate to his situation. There does not appear to be any intention on the part of
the legislature to deprive someone of permanent total disability benefits after it is discovered that he is not
amenable to vocational rehabilitation. Therefore, we do not construe the requirement in NRS 616C.390{4)
116 Nev. 296, 300 (2000) SIIS v. Perez
NRS 616C.390(4) for medical testimony to be a jurisdictional requirement for re-opening a claim.
[Headnote 4]
Furthermore, we conclude that the letter to Ms. Martinez from Perez's attorney qualified as an application for
re-opening the claim. The failure of EICON to respond was, in effect, a denial of the claim, granting Perez the
right to appeal. We conclude that the appeals officer had jurisdiction to review this de facto denial, and that the
appeals officer's findings were supported by substantial evidence. The other arguments of EICON are without
merit.
The judgment of the district court is affirmed.
Becker, J., concurs.
Two types of permanent partial disability (PPD) re-openings are contemplated under NRS 616C.390(4):
(1) to increase PPD benefits based upon a medical change in the worker's condition; and (2) to seek a change in
the characterization of the award to permanent total disability (PTD).
1
Here, Perez seeks reclassification
under the odd-lot doctrine. See NRS 616C.435(2); Nevada Indus. Comm'n v. Hildebrand, 100 Nev. 47, 675
P.2d 401 (1984).
The question of utmost importance on this appeal is whether, as a jurisdictional matter, the industrial insurer
itself or the Department of Administration may never entertain a claim for conversion of PPD to PTD status in
the absence of medical evidence of an objective change in the worker's condition. Clearly, NRS 616C.390
requires competent medical evidence as a precondition to re-opening. Further, the statutory scheme, as indicated,
contemplates re-opening to convert PPD status to PTD status. However, odd-lot total disability claims have
two components, only one of which is addressed in NRS 616C.390(4).
Unlike the re-opening of a PPD claim to effect a simple increase in the PPD rating, the re-opening of a claim
seeking permanent total disability status may have either medical or nonmedical
components.
__________

1
Perez contends that he was not required to seek formal re-opening with supporting medical evidence
because a claim to convert a worker's PPD status to PTD status is simply the end result of a failure of
rehabilitative services which are allowed under NRS 616C.495(2). In light of the plain language of NRS
616C.390(4), I disagree. However, in my view, the letter to Ms. Martinez qualified as formal application for
re-opening.
I am also of the opinion that the statutory language requiring that such applications be supported with medical
evidence does not require that the evidence itself be physically attached to the actual communication stimulating
the re-opening process. It is sufficient if there is a general averment mentioning the supporting evidence, which
must be provided during the administrative proceedings over the claim.
116 Nev. 296, 301 (2000) SIIS v. Perez
permanent total disability status may have either medical or nonmedical components. First, a condition may have
ripened into a scheduled disability under NRS 616C.435(1). This type of change in status is addressed by the
terms of the re-opening statute because the change could only be demonstrated by objective medical evidence.
Second, a program of rehabilitation undertaken after a PPD award may demonstrate an inability of the worker to
return to employment because of the effect of non-medical issues acting in synergy with the known medical
condition. This is the sine qua non of odd-lot permanent total disability. In Hildebrand, this court identified
examples of non-medical components, i.e., age, experience, training and education. Third, the medical condition
could worsen and, along with non-medical issues, cause the worker's status to deteriorate to the extent odd-lot
status is appropriate.
Again, the re-opening statute requires proof of an objective change in the industrial medical condition as a
condition to re-opening a claim following an award. It makes no mention of a change of the non-medical or
social circumstances as a basis for re-opening a PPD award to claim odd-lot PTD status. I do not believe
that this omission was intentional.
I would therefore elaborate on the majority analysis as follows. A PPD award may be re-opened to claim
PTD status if the following is established with legally competent evidence documenting: (1) an objective change
in the worker's medical condition stemming from the industrial injury which demonstrates a scheduled total
disability under NRS 616C.435(1); (2) a legitimate inability to rehabilitate the worker such that he or she
qualifies for unscheduled (odd-lot) permanent disability; or (3) changes in the worker's medical condition
which, in combination with nonmedical issues, would justify odd-lot status. Of course, these proofs must
satisfy the requirements of NRS 616C.435. If the various permutations are not recognized, the statutory
re-opening scheme would not fully account for the possibilities attendant to PTD claims based upon the
odd-lot doctrine.
____________
116 Nev. 302, 302 (2000) Moore v. State
JAMES LAMONT MOORE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 28896
March 10, 2000 997 P.2d 793
Appeal from a judgment of conviction, pursuant to jury verdicts of guilty on one count of murder with the
use of a deadly weapon, and five counts of robbery with the use of a deadly weapon. Eighth Judicial District
Court, Clark County; Lee A. Gates, Judge.
Defendant was convicted, pursuant to jury verdicts, in the district court of murder with the use of a deadly
weapon and robbery with the use of a deadly weapon, and he appealed. The supreme court held that: (1) State
was permitted to proceed under alternative theories of premeditation/deliberation and felony-murder to prove the
elements of first-degree murder, (2) information was sufficient to place defendant on notice that the State was
seeking a felony-murder conviction, and (3) error stemming from impropriety during the State's closing
argument was harmless.
Affirmed.
Morgan D. Harris, Public Defender, and Michael L. Miller, Deputy Public Defender, Clark County, for
Appellant.
1. Homicide.
State was permitted to proceed under alternative theories of premeditation/deliberation and felony-murder to prove the elements of
first-degree murder. NRS 200.030(1)(a), (b).
2. Criminal Law.
Jury need not even reach unanimity with respect to alternative theories in first-degree murder prosecution. NRS 200.030.
3. Homicide.
Information alleging that the murder occurred during the course of a robbery was sufficient to place defendant on notice that the
State was seeking a felony-murder conviction. NRS 200.030(1)(b).
4. Homicide.
First-degree murder conviction based on felony-murder cannot be sustained unless the State gives notice in its charging document
that it is seeking a conviction based upon such a theory and states specific facts supporting the conclusion that the murder was
committed during the commission of a particular identified felony. NRS 200.030(1)(b).
5. Criminal Law.
Prosecutors must be free to express their perceptions of the record, evidence, and inferences, properly drawn therefrom; however,
prosecutors must not place their own personal certification on a jury argument by the use of such expressions as "I
personally believe" or "in my humble opinion."
116 Nev. 302, 303 (2000) Moore v. State
by the use of such expressions as I personally believe or in my humble opinion.
6. Criminal Law.
Criminal conviction is not to be lightly overturned on the basis of a prosecutor's comment standing alone.
7. Criminal Law.
Relevant statements or conduct must be viewed in context to determine whether a prosecutor's conduct affected the fairness of the
trial. If the error is harmless, beyond a reasonable doubt, the conviction will stand.
8. Criminal Law.
Prosecutor's closing argument statement, I am telling you now with all sincerity, I kept my promise to prove defendant was
guilty of murder and robbery beyond a reasonable doubt, was improper, but statement that defendant was not overcharged was not.
9. Criminal Law.
Any resulting error from prosecutor's improper statement during closing argument that he kept his promise to prove defendant was
guilty of murder and robbery beyond a reasonable doubt was harmless beyond a reasonable doubt.
OPINION
Per Curiam:
Appellant, James Lamont Moore, was convicted in district court of first-degree murder and multiple
robberies, all with the use of a deadly weapon. Moore appeals, arguing three assignments of error in support
of reversal of the judgment entered upon his convictions. First, the State should have been required to elect
between theories of premeditated murder under NRS 200.030(1)(a) and felony-murder under NRS
200.030(1)(b). Second, the criminal information containing the charges against him was not sufficiently
definite with regard to the felony-murder allegations. Third, the prosecutor was guilty of misconduct during
closing arguments to the jury. We reject all of Moore's contentions on appeal.
FACTS
On April 24, 1994, Moore shot and killed Jimmie Wyant, a bartender at Granny's bar in North Las
Vegas, Nevada. Moore had been a regular customer of the establishment. The shooting took place after
Wyant refused Moore's armed demands for money and after threats that he would kill Wyant if the refusals
to comply continued. After shooting Wyant, Moore took money from the cash register and several other
customers. Moore then left the scene, at which time one of the customers summoned the
police.
116 Nev. 302, 304 (2000) Moore v. State
left the scene, at which time one of the customers summoned the police. In the interim, Moore returned but fled
upon the arrival of law enforcement officials.
Police ultimately arrested Moore, recovered the murder weapon, and conducted a custodial interview in
compliance with Miranda v. Arizona, 384 U.S. 486 (1966). Although Moore admitted his involvement in the
shooting and the robberies, he claimed that the shooting was an accident, that the gun just went off, and that he
had returned to the bar to check on Wyant's condition.
On April 30, 1996, Moore was convicted of one count of first-degree murder with the use of a deadly
weapon and five counts of robbery with the use of a deadly weapon.
DISCUSSION
Election of theories by the State
[Headnote 1]
Moore first contends that the district court erroneously denied his request to compel the State to elect a
theory of prosecution, i.e., between premeditated murder and felony-murder. See NRS 200.030(1)(a) and (b).
1

[Headnote 2]
In Holmes v. State, 114 Nev. 1357, 1363-64, 972 P.2d 337, 342 (1998), we concluded that the commission
of a felony and premeditation are merely alternative means under NRS 200.030 of establishing the single mens
rea element of first-degree murder, rather than constituting independent elements of the crime. See Doleman v.
State, 107 Nev. 409, 417, 812 P.2d 1287, 1292 (1991) (jury instructed on various theories of first-degree murder
including premeditation and felony-murder); Nevius v. State, 101 Nev. 238, 243, 699 P.2d 1053, 1060 (1985)
(jury instructed on both premeditation/deliberation and felony-murder theories of liability for first-degree
murder). Further, a jury need not even reach unanimity with respect to either theory. See Schad v. Arizona, 501
U.S. 624, 631 (1991), cited with approval in Holmes. Thus, there is no requirement that the State elect a single
theory of prosecution for murder.
We conclude that Moore's motion was properly denied and hold that the State is permitted to proceed under
alternative theories of premeditation/deliberation and felony-murder to prove the elements of first-degree
murder.
__________

1
Murder of the first degree is murder which is: (a) Perpetrated by means of poison, . . . or by any other kind
of willful, deliberate and premeditated killing; [or] (b) Committed in the perpetration of . . . robbery . . . . NRS
200.030(1)(a) and (b).
116 Nev. 302, 305 (2000) Moore v. State
Sufficiency of the criminal information
[Headnote 3]
Moore contends that the felony-murder charge set forth in the criminal information was fatally defective for
lack of factual specificity.
[Headnote 4]
A first-degree murder conviction based on felony-murder cannot be sustained unless the State gives notice
in its charging document that it is seeking a conviction based upon such a theory and states specific facts
supporting the conclusion that the murder was committed during the commission of a particular identified
felony. See Alford v. State, 111 Nev. 1409, 1410-11, 906 P.2d 714, 715 (1995).
Count I of the information read, in part, as follows:
COUNT IMURDER WITH USE OF A DEADLY WEAPON
. . . [O]n or about April 24, 1994, defendant . . . did then and there, willfully, feloniously, without
authority of law, with malice aforethought and premeditation and/or during the course of committing
Robbery and/or Attempt Robbery, kill JIMMIE EARL WYANT with a deadly weapon, to-wit: a firearm,
during the commission of said crime. . . .
We conclude that the information was sufficient to place Moore on notice that the State was seeking a
felony-murder conviction. The facts stated in the information clearly allege that the murder occurred during the
course of a robbery on April 24, 1994.
Charges of misconduct by the prosecutor
Moore contends that the prosecutor improperly argued that the State had kept its promise to prove Moore
guilty beyond a reasonable doubt and that Moore was not overcharged. The statements in controversy are:
Ladies and gentlemen, when I stood before you and made my opening statement I also made a
promise. The promise was that the evidence would prove beyond a reasonable doubt James Lamont
Moore committed the crimes charged.
I am telling you now with all sincerity, I kept my promise, . . .
(Emphasis added.)
Mr. Wall also alluded to his concern that as a jury you consider individually all six of the counts. I
don't disagree with that. In fact, the Court tells you in the instructions that you must consider the
evidence individually regarding the various counts.
116 Nev. 302, 306 (2000) Moore v. State
various counts. They are all serious or they wouldn't be alleged. I do want to say however, that no one
has tried to pile on charges in this case.
(Emphasis added.)
[Headnotes 5-7]
Prosecutors must be free to express their perceptions of the record, evidence, and inferences, properly drawn
therefrom. See Jimenez v. State, 106 Nev. 769, 773, 801 P.2d 1366, 1368 (1990). However, prosecutors must
not place their own personal certification on a jury argument by the use of such expressions as I personally
believe or in my humble opinion. Id. However, a criminal conviction is not to be lightly overturned on the
basis of a prosecutor's comment standing alone. See United States v. Young, 470 U.S. 1, 11 (1985). Relevant
statements or conduct must be viewed in context to determine whether the prosecutor's conduct affected the
fairness of the trial. Id. If the error is harmless, beyond a reasonable doubt, the conviction will stand. See
Manning v. Warden, 99 Nev. 82, 87, 659 P.2d 847, 850 (1983).
[Headnotes 8, 9]
We conclude that the first disputed statement made by the prosecution was improper, but the second disputed
statement was not. However, a careful review of the record suggests that the fairness of Moore's trial was
unaffected by the improper statement. We therefore hold that while one of the disputed statements was improper,
any resulting error was harmless beyond a reasonable doubt.
CONCLUSION
We conclude that Moore's motion to require the State to elect a theory of prosecution of first-degree murder
was properly denied. We further conclude that the facts alleged in the criminal information were sufficiently
specific to put Moore on notice that the State sought a conviction based upon a felony-murder theory. We
finally conclude that error stemming from an impropriety during the State's closing argument was harmless.
____________
116 Nev. 307, 307 (2000) Krauss v. State
HAROLD JAMES KRAUSS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 30264
March 10, 2000 998 P.2d 163
Proper person appeal from a district court order denying appellant's post-conviction petition for a writ of
habeas corpus. Eighth Judicial District Court, Clark County; Myron E. Leavitt, Judge.
Defendant convicted of felony driving while under the influence (DUI), as a third DUI offense, brought
post-conviction petition for writ of habeas corpus. The district court denied the petition. Defendant appealed.
The supreme court, Maupin, J., held that: (1) a defendant may stipulate to or waive proof of prior DUI
convictions, for purposes of sentence enhancement, overruling Robertson v. State, 109 Nev. 1086, 863 P.2d
1040 (1993); and (2) trial counsel was not ineffective in failing to challenge the prior convictions.
Affirmed.
Harold James Krauss, Las Vegas, in Proper Person.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, Clark County, for
Respondent.
1. Automobiles.
A prior driving while under the influence (DUI) conviction for which defendant was not represented by counsel would be invalid
for purposes of enhancing the sentence for a subsequent DUI conviction, absent sufficient evidence that defendant had validly waived
the right to counsel and that the spirit of constitutional principles was respected. U.S. Const. amend. 6; NRS 484.3792.
2. Criminal Law.
Trial counsel was not ineffective in failing to challenge the validity of one of defendant's prior driving while under the influence
(DUI) convictions, which was used to enhance defendant's sentence for the present DUI offense, where defendant had indicated in
open court that he did not wish to challenge the validity of prior convictions and that he had been represented by counsel in the prior
proceedings. U.S. Const. amend. 6; NRS 484.3792.
3. Automobiles.
Defendant's statements on the record, indicating that he did not wish to challenge the validity of his prior driving while under the
influence (DUI) convictions and that he had been represented by counsel in the prior proceedings, made it unnecessary for State to
offer evidence of the prior convictions for purposes of enhancing defendant's sentence for the present DUI offense, though the better
practice would have been for the State to make a clear record of defendant's prior convictions by producing proof at the sentencing
hearing. U.S. Const. amend. 6; NRS 484.3792.
4. Automobiles.
A defendant may stipulate to or waive proof of prior driving while under the influence (DUI) convictions, for purposes of sentence
enhancement; overruling Robertson v. State, 109 Nev. 1086, 863 P.2d 1040 (1993). NRS 484.3792.
5. Estoppel.
Generally, a defendant is entitled to enter into agreements that waive or otherwise affect his or her fundamental rights.
6. Criminal Law.
A defendant charged with driving while under the influence (DUI) may waive a preliminary hearing, even though a statute
indicates that, if a felony DUI offense is alleged, the facts of the prior convictions must also be shown at the preliminary examination
or presented to the grand jury. NRS 484.3792(2).
7. Criminal Law.
By pleading guilty, a defendant may waive the trial itself, thereby relieving the State of its obligation to prove the substantive
offense.
8. Criminal Law.
Trial counsel was not ineffective in allegedly failing to review the presentence investigation report and to bring alleged errors in
the report to the district court's attention, where the alleged errors were comparatively minor, so that defendant was not prejudiced.
OPINION
This is a proper person appeal from a district court order denying appellant's post-conviction petition
for a writ of habeas corpus. In his petition, appellant alleged: (1) that his trial counsel was ineffective; and
(2) that the State failed to prove the prior convictions for driving while under the influence (DUI)
required to enhance appellant's present conviction to felony, third-offense DUI. See NRS 484.3792(2).
Although we conclude that appellant's claims lack merit, we issue this opinion to establish that a
defendant charged with felony DUI may stipulate to the existence of prior convictions for enhancement
purposes.
On December 19, 1995, the district court convicted appellant, pursuant to a guilty plea, of one count of
DUI, appellant's third offense within seven years. See NRS 484.3792. The court sentenced appellant to
serve five years in the Nevada State Prison. This court dismissed appellant's untimely direct appeal for
lack of jurisdiction. Krauss v. State, Docket No. 29710 (Order Dismissing Appeal, March 14, 1997).
On June 14, 1996, appellant filed a proper person post-conviction petition for a writ of habeas corpus
in the district court.
court. The State opposed the petition. The district court declined to appoint counsel or hold a formal evidentiary
hearing. However, the court did admit evidence of appellant's prior convictions that the State alleged should
enhance appellant's present conviction to felony, third-offense DUI. The court summarily denied appellant's
petition. This appeal followed.
In his petition, appellant raised two primary claims. First, appellant argued that his counsel was ineffective
for failing to test the validity of the prior DUI convictions during the district court proceedings or on direct
appeal. Second, appellant claimed that the State failed to prove his prior DUI convictions with sufficient
competent evidence.
[Headnote 1]
From the existing record, it is unclear whether the State produced any proof of the prior convictions before
the post-conviction proceedings. Further, it appears that appellant might not have been represented by counsel in
one of the two prior DUI cases used to enhance his sentence. The conviction in that case would be invalid for
enhancement purposes absent sufficient evidence that appellant validly waived the right to counsel and that the
spirit of constitutional principles was respected. See Davenport v. State, 112 Nev. 475, 478, 915 P.2d 878, 880
(1996).
[Headnote 2]
Nevertheless, appellant led his attorney and the sentencing court to believe that he had been represented by
counsel in both cases and that both prior convictions were valid for enhancement purposes. Notably, the
following exchange occurred at sentencing:
THE COURT: By virtue of your previous guilty plea you are hereby adjudged guilty of the offense
of driving and/or being in actual physical control of a motor vehicle while under the influence of
intoxicating liquor.
Did we establish the toxicology of the previous offense? I believe we did that at the time we took the
plea, didn't we?
[DEFENSE COUNSEL]: I think so, Your Honor.
THE COURT: He was represented by an attorney in each of these cases?
[DEFENSE COUNSEL]: I believe we did, Your Honor.
THE COURT: Well, Mr. Krauss, do you dispute any of the prior convictions as shown in the
presentence report where you had been charged with driving under the influence of intoxicating liquor
within the last seven years?
THE DEFENDANT: No, Your Honor.
THE COURT: You were represented by an attorney in reach [sic] one of those cases, weren't you?
THE DEFENDANT: Yes, sir.
Given appellant's statements on the record, we reject his claim that his counsel was ineffective for failing to
test the validity of the prior DUI convictions. The United States Supreme Court has explained, The
reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own
statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by
the defendant and on information supplied by the defendant. Strickland v. Washington, 466 U.S. 668, 691
(1984). Here, the information supplied by appellant, in open court, indicated that he did not wish to challenge
the validity of the prior DUI convictions and that he had been represented by counsel in the prior proceedings. It
was reasonable for appellant's counsel to rely on his client's assertions.
[Headnote 3]
Similarly, we conclude that relief is unwarranted even assuming that the State failed to offer sufficient
competent evidence of appellant's prior convictions. Assuming the State was prepared to produce proof of
appellant's prior convictions at the time of sentencing, appellant's statements on the record obviated the need for
it to do so.
1

[Headnote 4]
We recognize that our ruling today is inconsistent with dictum in Robertson v. State, 109 Nev. 1086, 863
P.2d 1040 (1993). In Robertson, the State acknowledged that the validity of prior convictions is a legal status to
which a defendant may not stipulate and must be determined by the district court as a matter of law. Id. at 1089,
863 P.2d at 1042. We overrule Robertson to the extent that the opinion suggests that a defendant may not
stipulate to or waive proof of prior DUI convictions.
[Headnotes 5-7]
Generally, a defendant is entitled to enter into agreements that waive or otherwise affect his or her
fundamental rights. Campbell v. Wood, 18 F.3d 662, 673 (9th Cir. 1994). For example, a defendant may waive a
preliminary hearing even though NRS 484.3792(2) indicates that, if a felony DUI offense is alleged, the facts of
the prior convictions must also be shown at the preliminary examination or presented to the grand jury.
Further, by pleading guilty a defendant may waive the trial itself, thereby relieving the State of its obligation to
prove the substantive offense.
__________

1
In so ruling, we recognize that the better procedure would have been for the State to make a clear record of
appellant's prior convictions by producing proof of the convictions at the sentencing hearing. See NRS
484.3792(2).
offense. It follows that a defendant should be able to stipulate to or waive proof of the prior convictions at
sentencing.
[Headnote 8]
Having concluded that the claims appellant raised in his petition lack merit,
2
we affirm the district court
order denying the petition.
3

Shearing and Becker, JJ., concur.
____________
116 Nev. 311, 311 (2000) Breault v. State
ROBERT RAYMOND BREAULT, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 31211
March 10, 2000 996 P.2d 888
Proper person appeal from a district court order denying appellant's motion to correct an illegal sentence.
Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Defendant pleaded guilty to mayhem and assault with a deadly weapon, and was sentenced to serve a
maximum term of 70 months with a minimum parole eligibility of 42 months on the mayhem conviction and
consecutive maximum term of 20 months with a minimum parole eligibility of 12 months on the assault
conviction. The district court denied defendant's proper person motion to correct an illegal sentence, and he
appealed. The supreme court, Becker, J., held that, although sentences did not comply with statute requiring that
minimum term of imprisonment must not exceed forty percent of the maximum term imposed, sentences were
part of a voluntary and knowing plea.
Affirmed.
Robert Raymond Breault, Jean, in Proper Person.
Respondent.
__________

2
In his petition, appellant also claimed that his counsel improperly failed to review the presentence
investigation report and to bring alleged errors in the report to the district court's attention. The alleged errors in
the report are comparatively minor. Having reviewed the sentencing transcript, we do not perceive that appellant
suffered any prejudice even assuming his allegations are true. Thus, appellant's claim lacks merit.

3
Although appellant has not been granted permission to file documents in this matter in proper person, see
NRAP 46(b), we have received and considered appellant's proper person documents. We conclude that the relief
requested is not warranted.
1. Criminal Law.
Although sentences for mayhem and assault with a deadly weapon agreed upon by the parties, and which the court ultimately
imposed, did not comply with statute requiring that minimum term of imprisonment must not exceed forty percent of the maximum
term imposed, sentences were part of a voluntary and knowing plea, in which defendant expressly waived any defects associated with
the minimum and maximum terms of his sentences. NRS 193.130(1).
2. Criminal Law.
When a defendant knowingly and voluntarily agrees to the sentence, and expressly waives the defect impacting only parole
eligibility, the supreme court will not permit the defendant to manipulate the judicial system by subsequently insisting that the sentence
conform to the requirements of statute providing that minimum term of imprisonment that may be imposed must not exceed forty
percent of the maximum term imposed. NRS 193.130(1).
OPINION
By the Court, Becker, J.:
On January 28, 1997, the district court convicted appellant Robert Raymond Breault, pursuant to a
guilty plea, of one count each of mayhem and assault with a deadly weapon. For the mayhem conviction,
the district court sentenced appellant to serve a maximum term of 70 months with a minimum parole
eligibility of 42 months. For the assault with a deadly weapon conviction, the district court sentenced
appellant to serve a maximum term of 20 months with a minimum parole eligibility of 12 months. The
district court ordered the sentences to be served consecutively. Appellant was given credit for 353 days of
time served.
On September 17, 1997, appellant filed a proper person motion to correct an illegal sentence in the
district court. In his motion, appellant contended that his sentences were illegal because the minimum
sentence exceeded forty percent of the maximum sentence for each offense in violation of NRS 193.130.
Appellant requested the district court to modify his sentences to a maximum term of 70 months with a
minimum parole eligibility of 28 months for mayhem, and a maximum term of 20 months with minimum
parole eligibility of 8 months for assault with a deadly weapon. The State opposed the motion. The district
court entered a written order summarily denying appellant's motion, and this appeal followed.
[Headnote 1]
We conclude that the district court properly denied appellant's motion. NRS 193.130(1) provides in
relevant part:
[A] person convicted of a felony shall be sentenced to a minimum term and a maximum term of
imprisonment which must be within the limits prescribed by the applicable statute, unless the statute in
force at the time of commission of the felony prescribed a different penalty. The minimum term of
imprisonment that may be imposed must not exceed 40 percent of the maximum term imposed.
For the offense of mayhem, the statutory sentencing range is a minimum term of not less than 24 months and a
maximum term of not more than 120 months. NRS 200.280.
1
Here, appellant's minimum term of 42 months
exceeds forty percent of the maximum term of 70 months, and thus does not comply with NRS 193.130(1). For
the offense of assault with a deadly weapon, the statutory sentencing range is a minimum term of not less than 12
months and a maximum term of not more than 72 months. NRS 200.471(2)(b). Appellant's minimum term of 12
months exceeds forty percent of the maximum term of 20 months, and thus does not comply with NRS
193.130(1).
Appellant, however, agreed to the sentences imposed as part of the negotiated plea agreement. The written
guilty plea memorandum provided:
The Defendant waives all defects associated with the minimum and maximum terms associated with
Count I and Count II. The defendant also understands and agrees that it is the intent of the parties that he
serve a mandatory minimum of 54 months in the Nevada State Prison before parole eligibility.
Appellant has not alleged that his plea was involuntary or unknowing. Further, in the State's opposition filed in
the district court, the State contended that the maximums were reduced as an accommodation for the defendant
who was concerned that he might have to pull the top end of a maximum which was greater than the stipulated
maximum sentence. While this statement is somewhat ambiguous, it appears that the parties' agreement was
intended to benefit appellant.
Moreover, the minimum and maximum terms of appellant's sentences were well within the statutory ranges.
The fact that the minimum terms exceeded forty percent of the maximum terms imposed, merely affected
appellant's parole eligibility and not the actual length of his sentences. See NRS 213.1099(2) (stating that a
person convicted of a felony and sentenced to a term of imprisonment remains subject to the
jurisdiction of the parole board from the time he is released on parole until the expiration
of the maximum term of imprisonment);
__________

1
Although the applicable statutes set forth the sentencing ranges in terms of years, we refer to the sentencing
ranges in terms of months for purposes of clarity. See NRS 200.280 and NRS 200.471.
onment remains subject to the jurisdiction of the parole board from the time he is released on parole until the
expiration of the maximum term of imprisonment); NRS 213.120 (stating that a prisoner who is sentenced for a
crime committed on or after July 1, 1995, may be paroled when he has served the minimum term of
imprisonment; credits earned to reduce his sentence pursuant to NRS chapter 209 may only reduce the maximum
term).
[Headnote 2]
We disapprove of sentences which do not comply with the forty-percent provision of NRS 193.130(1), and
we will not hesitate to invalidate a sentence which violates this provision. However, when a defendant knowingly
and voluntarily agrees to the sentence, and expressly waives the defect impacting only parole eligibility, we will
not permit the defendant to manipulate the judicial system by subsequently insisting that the sentence conform to
the forty-percent provision. Here, the sentences agreed upon by the parties, and which the court ultimately
imposed, were part of a voluntary and knowing plea, and appellant expressly waived any defects associated with
the minimum and maximum terms of his sentences. Under these circumstances, we will not interfere with the
sentences imposed. See United States v. Barnes, 83 F.3d 934, 941 (7th Cir. 1996) (upholding a plea agreement
that provided for a sentence which departed from the prescriptions of federal sentencing guidelines); United
States ex rel. Ferris v. Finkbeiner, 551 F.2d 185 (7th Cir. 1977) (holding that when the defendant was
misadvised when entering his guilty plea that he would not have to serve a mandatory parole term following his
release from prison, fundamental fairness required limiting the term of his sentence to that which comported with
the plea bargain).
Our holding today is not inconsistent with Miranda v. State, 114 Nev. 385, 956 P.2d 1377 (1998). In
Miranda, the district court modified Miranda's sentences which did not comply with NRS 193.130(1) by
increasing the maximum terms, even though the court could have reduced the minimum terms to come within the
statute. On appeal, this court concluded that the court may correct an illegal sentence by increasing its severity
only when there is no other, less severe means of correcting the illegality. Id. at 387, 956 P.2d at 1378. In
Miranda, however, there was no indication that Miranda agreed to the sentences originally imposed by the
district court, or that Miranda agreed to waive any defects associated with the minimum and maximum terms as
part of the plea agreement. Thus, Miranda is distinguishable from the instant case.
Accordingly, we conclude that the district court properly denied appellant's motion to correct an
illegal sentence, and we affirm the order of the district court.
appellant's motion to correct an illegal sentence, and we affirm the order of the district court.
2

Maupin and Shearing, JJ., concur.
____________
116 Nev. 315, 315 (2000) Gallimort v. State
JOSE A. GALLIMORT, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32349
March 10, 2000 997 P.2d 796
Appeal from a judgment of conviction, pursuant to a bench trial, of one count each of first-degree kidnapping
with the use of a deadly weapon and battery with the use of a deadly weapon. Eighth Judicial District Court,
Clark County; Donald M. Mosley, Judge.
Defendant was convicted in the district court of one count each of first-degree kidnapping with the use of a
deadly weapon and battery with the use of a deadly weapon, and he appealed. The supreme court, Shearing, J.,
held that: (1) there was no prejudice to defendant resulting from language barrier, (2) failure to execute written
waiver of right to jury trial until conclusion of trial did not warrant grant of new trial, and (3) police officer's
failure to collect as evidence knife which defendant allegedly used to stab victim did not require reversal of
convictions.
Affirmed.
Chief Deputy District Attorney, and Kristen Nelsen, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
There was no prejudice to defendant resulting from language barrier in prosecution for kidnapping and battery. There was no
evidence to show that translation difficulties precluded defendant from assisting counsel in his defense, and there were no allegations
of inaccurate translation raised during trial.
2. Criminal Law.
Failure to execute written waiver of right to jury trial, as required by statute, until conclusion of trial did not warrant
grant of new trial on kidnapping and battery charges,
__________

2
Although appellant has not been granted permission to file documents in this matter in proper person, see
NRAP 46(b), we have received and considered appellant's proper person documents. We conclude that the relief
requested is not warranted.
statute, until conclusion of trial did not warrant grant of new trial on kidnapping and battery charges, where defendant was aware of his
right to jury trial and made knowing and intelligent oral waiver on record prior to commencement of bench trial. NRS 175.011(1).
3. Jury.
When a defendant wishes to waive his right to jury trial, better practice is for judge to inform the defendant of: (1) the number of
members of the community composing a jury, (2) the defendant's ability to take part in jury selections, (3) the requirement that jury
verdicts must be unanimous, and (4) that the court alone decides guilt or innocence if the defendant waives a jury trial.
4. Criminal Law.
The supreme court applies a two-part test to determine whether a police officer's failure to collect evidence is reversible error: (1)
the defendant must show that the evidence was material; and (2) if the evidence was material, then the court must consider whether the
officer's actions were merely negligent, grossly negligent, or conducted in bad faith to prejudice the defense.
5. Criminal Law.
The mere possibility that evidence may have affected the outcome of the trial does not establish materiality for purposes of
determining whether police officer's failure to collect evidence is reversible error.
6. Criminal Law.
Police officer's failure to collect as evidence knife which defendant allegedly used to stab victim did not require reversal of
convictions for kidnapping and battery, where victim was unable to positively identify knife as one used by defendant, knife had been
washed clean of fingerprints before officer was able to collect it, and other evidence, including testimony of victim and medical
evidence of stab wounds, rendered issue of which knife defendant used immaterial.
OPINION
Appellant Jose Gallimort, convicted on kidnapping and battery charges, argues that he should be
granted a new trial because he was not provided a qualified interpreter during each day of his trial, and
because he did not waive his right to a jury trial. Gallimort also contends that his conviction should be
reversed because the police failed to preserve material evidence. We disagree with Gallimort's arguments
and affirm his conviction.
BACKGROUND
Gallimort and Cynthia Rozier had been living with each other on a sporadic basis for approximately two
years. During this time, Rozier had made allegations of physical abuse and had at one point obtained a
restraining order against Gallimort. Eventually Gallimort moved out of Rozier's apartment.
At trial, Rozier testified that during the process of moving out, Gallimort arrived at her apartment with a
friend to remove Gallimort's possessions. Rozier stated that instead of taking his things and departing, Gallimort
beat and kicked her, causing injuries to her eye, mouth, and rib cage. Pointing a pistol at Rozier, Gallimort then
instructed her to dance with his friend. Rozier testified that Gallimort also threatened to kill her.
Minutes later, Gallimort's friend left the apartment after engaging in a disagreement with Gallimort. Then,
with a kitchen knife and the pistol, Gallimort forced Rozier into his car and instructed her to drive. After an hour
of driving, Gallimort allowed Rozier to stop to use a restroom at a convenience store. However, Gallimort
changed his mind and refused to allow Rozier to exit the vehicle. Inside the car, a struggle ensued during which
Gallimort inflicted shallow knife wounds to Rozier's neck, hands, chest, and shoulder.
Rozier testified that she was able to escape the car, but Gallimort pursued her with the knife, slashing her in
the back. During the chase, they activated a car alarm on a parked car, which made local residents come out of
their houses to discover what instigated the alarm. While residents watched, Gallimort fled the scene. Rozier was
speaking with a police officer who arrived on the scene, when she identified a car returning to the scene as
Gallimort's. Eyewitnesses also recognized the vehicle. Rozier was then taken to the hospital for her cuts, bruises,
and multiple stab wounds.
When Rozier returned to her apartment after two days at the hospital and a women's shelter, she found her
clothes torn and many of her possessions gone.
1
During Rozier's search of the premises, she found the gun and
knife she believed Gallimort used. The police collected the gun, but not the knife. Rozier was not sure that the
knife, which had been washed, was the one Gallimort used, so the police apparently decided it was not of
sufficient evidentiary value to collect it. Because the police did not collect the knife, Rozier disposed of it.
At pre-trial hearings, Gallimort was afforded a Spanish-speaking interpreter. The record also reflects the
presence of an interpreter on the first day of trial. While the trial transcript does not mention an interpreter on the
second day of trial, another district court document shows the presence of two interpreters that day, one in the
morning and another in the afternoon.
On the first day of trial, Gallimort orally waived his right to a jury trial. After both sides made their closing
arguments, the court discovered that Gallimort had not signed a written waiver of the jury
trial:
__________

1
When Gallimort was arrested, the police discovered Rozier's personal property in Gallimort's vehicle.
court discovered that Gallimort had not signed a written waiver of the jury trial:
THE COURT: Another matter of housekeeping. It's been brought to my attention that the waiver of
jury trial, the formal document waiving jury trial, has not been executed by the defendant.
Mr. Gallimort, I would ask you to waive that, in keeping with your request for a bench trial. The
record will reflect the waiver has been signed.
The judge then ruled that Gallimort was guilty of first-degree kidnapping with the use of a deadly weapon
and battery with the use of a deadly weapon.
DISCUSSION
[Headnote 1]
Gallimort alleges that interpreters were not provided for him at all stages of the trial and that those
interpreters who were provided at some stages of the trial were not qualified. We reject these contentions for
three reasons. First, a district court document shows that an interpreter was present throughout Gallimort's
trial. Second, similar to the circumstances in State v. Langarica, 107 Nev. 932, 935, 822 P.2d 1110, 1112
(1991), at Gallimort's trial there were neither allegations of inaccurate translation nor any evidence that
Gallimort misunderstood any testimony. Third, Gallimort's due process rights were not violated since he was
ablethrough an interpreterto assist counsel in his defense. See, e.g., Ton v. State, 110 Nev. 970, 972, 878
P.2d 986, 987 (1994). Since there was no objection during trial and no allegation or evidence that Gallimort did
not understand the interpreter, Gallimort's contention that the interpreters were not qualified is unsupported.
[Headnote 2]
Gallimort argues that he did not knowingly and intelligently waive his right to a jury trial. See, e.g., Adams v.
U.S. ex rel. McCann, 317 U.S. 269, 277 (1942) (stating that accused must be competent to exercise an intelligent
and informed waiver of the right to trial by jury). We review the waiver of a jury trial de novo. See United States
v. Robertson, 45 F.3d 1423, 1430 (10th Cir. 1995). NRS 175.011(1) allows a defendant to waive his right to
trial by jury when the defendant makes a written waiver and the court and the state consent to the jury trial
waiver. In this case, Gallimort signed the written waiver after the trial. The trial judge requested that Gallimort
sign the written waiver just before the judge pronounced his verdict, and Gallimort complied with the judge's
request.
the judge's request. While the written waiver should have been signed before trial, we conclude that a new trial is
unwarranted because Gallimort made an oral knowing and intelligent waiver of his right to trial by jury on the
record before the bench trial commenced.
The United States Court of Appeals for the Ninth Circuit in Brown v. Burns, 996 F.2d 219 (9th Cir. 1993),
faced a situation similar to the one we face today. In Burns, the defendant did not sign a written waiver as
required by Nevada statute. See id. at 220-21. However, the trial judge and the defendant had engaged in a
dialogue about the differences between a bench trial and a jury trial. After this conversation, the defendant
waived his right to a jury trial. The Ninth Circuit held that the defendant's express waiver in open court satisfied
the constitutional requirement of a knowing, intelligent, and voluntary waiver. See id. at 221.
Gallimort and the trial judge in this case discussed Gallimort's wish to waive his right to a jury trial.
2
The
record reflects that Gallimort was aware that he had two options: a trial by jury or a bench trial. He was told that
in a jury trial the members of the jury would determine his guilt whereas only the judge would have this
authority in a bench trial. It is also relevant that Gallimort had spoken to his attorney about the option of a jury
trial or a bench trial. See Adams, 317 U.S. at 277. Gallimort's attorney advised a bench trial. Thus, we conclude
that the district court did not err in finding that Gallimort was aware of his right to trial by jury
and that he waived that right knowingly and intelligently.
__________

2
The conversation between Gallimort and the trial judge was as follows:
THE COURT: . . . Gallimort, I am informed that you may wish to have your matter tried to the Court
as opposed to a jury?
THE DEFENDANT: Yes.
THE COURT: Is that what you want to do, sir?
THE DEFENDANT: Yes.
THE COURT: Now, you understand that the jurors are right outside the room here, the courtroom.
They can be brought in and you can have your trial before a jury, or not; do you understand that fully?
THE DEFENDANT: Yes, I understand it in the way it was explained to me.
THE COURT: Do you have any questions about your right to a trial, either before the judge or the
jury?
THE DEFENDANT: Yes, I do. When I ask a question like I was asking my attorney, if there's no
solution to the lies, can I then go to a jury?
THE COURT: I'm not sure that I understand.
THE DEFENDANT: I'm in this trial, it's my day for trial before a judge. Then I don't have the right
to go before a jury?
THE COURT: No, sir. You have only one trial at this level, and you have to either have a judge hear
your case, or a jury. And it will be conducted today. What is your decision, sir?
THE DEFENDANT: The judge.
THE COURT: All right. Does counsel concur?
MR. JORGENSON: Yes, Judge. It was my advice for various tactical reasons.
not err in finding that Gallimort was aware of his right to trial by jury and that he waived that right knowingly
and intelligently.
[Headnote 3]
We take this opportunity to establish prospective guidelines for the district court to follow when a defendant
wishes to waive the right to jury trial. The United States Courts of Appeals for the Sixth and Tenth Circuit have
announced a suggested jury trial waiver procedure which we endorse. These courts instruct district court judges
to inform defendants of the following: (1) the number of members of the community composing a jury; (2) the
defendant's ability to take part in jury selections; (3) the requirement that jury verdicts must be unanimous; and
(4) that the court alone decides guilt or innocence if the defendant waives a jury trial. See Robertson, 45 F.3d at
1432; see also United States v. Martin, 704 F.2d 267, 274-75 (6th Cir. 1983) (referring to United States v.
Delgado, 635 F.2d 889, 890 (7th Cir. 1981)). By informing a defendant of these aspects of a jury trial versus
those of a bench trial, the district court will be better able to determine whether a proposed waiver is actually
knowing and voluntary. While we do not create a mandatory procedure for district courts, we urge district courts
to instruct the defendant fully in order to avoid misunderstandings by the defendant.
[Headnote 4]
Gallimort also argues that his conviction should be reversed because the police did not collect the knife
Gallimort allegedly used to stab Rozier, thereby causing the loss of important evidence. We apply a two-part test
to determine whether a police officer's failure to collect evidence is reversible error. Gallimort must show that
the knife evidence was material, and, if the knife is material, then we consider whether the police investigator's
actions were merely negligent, grossly negligent, or conducted in bad faith to prejudice Gallimort's defense. See
Daniels v. State, 114 Nev. 261, 267-68, 956 P.2d 111, 115 (1998). We hold that it is not evident that the knife
was material, but even if the knife was material, the police investigator's failure to collect the knife was at most
merely negligent.
[Headnote 5]
The knife is material only if there is a reasonable probability that had the evidence been available to the
defense, the result of Gallimort's trial would have been different. See id. at 267, 956 P.2d at 115. The mere
possibility that the knife may have affected the outcome of the trial does not establish materiality. See United
States v. Agurs, 427 U.S. 97, 109-110 (1976). When Rozier presented the knife to the police investigator she
was not certain that the knife was the one Gallimort used to stab her.
the knife was the one Gallimort used to stab her. Appellant can only speculate that the knife may have aided his
case.
[Headnote 6]
There is no reasonable probability that the availability of the knife would have resulted in a different verdict,
since the knife could not be positively identified. Examination of the knife would either have confirmed that it
was the knife that was used to cut Rozier if blood had been found on it, or that it was not the knife. The presence
or absence of the knife would have had no effect on whether Gallimort was guilty of the crime charged. The
evidence against him was the testimony of the victim and eyewitnesses and objective medical evidence of the
stab wounds. Which knife was used is immaterial.
Even if the knife were material, then the police investigator's failure to collect it was at most merely
negligent. There is no evidence that the police investigator acted in bad faith, purposefully concealing the
existence of the knife to disadvantage the defense. In either case, the absence of the knife at trial does not
mandate reversal of Gallimort's conviction. See Daniels, 114 Nev. at 267, 956 P.2d at 115.
The judgment of conviction is affirmed.
Maupin and Becker, JJ., concur.
____________
116 Nev. 321, 321 (2000) Petty v. State
ANTHONY PETTY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32500
March 10, 2000 997 P.2d 800
Appeal from a judgment of conviction, pursuant to a jury verdict, of first degree murder with the use of a
deadly weapon. The district court sentenced appellant to two terms of life with the possibility of parole after
twenty years. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Defendant was convicted in the district court of first degree murder with the use of a deadly weapon, and he
appealed. The supreme court, Shearing, J., held that (1) refusal to admit evidence of victim's violent character
and prior robbery conviction was error requiring reversal of conviction, and (2) evidence of victim's prior
conviction for pointing a deadly weapon at a person was not admissible.
116 Nev. 321, 322 (2000) Petty v. State
Morgan D. Harris, Public Defender, and Robert L. Miller and Howard Brooks, Deputy Public Defenders,
Chief Deputy District Attorney, and David T. Wall, Deputy District Attorney, Clark County, for Respondent.
1. Criminal Law.
The supreme court will overturn a district court's decision to admit or exclude evidence only when there has been an abuse of
discretion.
2. Criminal Law.
A defendant is permitted to present evidence of the character of a crime victim, regardless of the defendant's knowledge of the
victim's character, when it tends to prove that the victim was the likely aggressor. NRS 48.045(1)(b).
3. Criminal Law.
Where it is otherwise admissible, proof of character may be established by testimony as to reputation or in the form of an opinion.
NRS 48.055(1).
4. Homicide.
When it is necessary to show the state of mind of the defendant at the time of the commission of an offense for the purpose of
establishing self-defense, specific acts which tend to show that the victim was a violent and dangerous person may be admitted,
provided that the specific acts of violence of the victim were known to the accused or had been communicated to him.
5. Homicide.
Refusal to admit opinion testimony of two probation officers and police officer as evidence of murder victim's violent character
was error requiring reversal of defendant's conviction, where defendant was attempting to present self-defense theory. NRS 48.045,
48.055.
6. Homicide.
Evidence of murder victim's prior conviction for robbery was admissible to show defendant's state of mind when he shot victim,
where defendant was aware at time he shot victim that victim had committed robberies in past, and defendant was attempting to prove
that he shot victim in self-defense because he feared that victim was attempting to rob and harm him. NRS 48.055(2).
7. Homicide.
Evidence of victim's prior conviction for pointing a deadly weapon at a person was not admissible in murder prosecution, even
though defendant was attempting to prove that he shot victim in self-defense because he feared that victim was attempting to rob and
harm him, where defendant had no knowledge of that prior conviction at time of shooting.
116 Nev. 321, 323 (2000) Petty v. State
OPINION
Appellant Anthony Petty argues on appeal that he should be granted a new trial because the district
court abused its discretion by prohibiting Petty from presenting character evidence of the victim. We
agree with Petty's contention and reverse and remand for a new trial.
BACKGROUND
Erica Cooper and Tumekga Smith drove to the Sierra Vista Apartment Complex during the evening of
September 18, 1997. While lingering in the parking lot, Anthony Petty approached them and asked for a ride;
Cooper and Smith denied his request. Petty then returned to Corlina Carter's apartment where he was staying
with his girlfriend and Nedra Turman. Turman testified that Petty was acting paranoid when he returned to
the apartment. Petty began packing his belongings and instructed Turman to tell his girlfriend that he was
going to take a bus to California in an hour.
Before Cooper and Smith left the apartment complex, they too went to Carter's apartment. As Cooper and
Smith were climbing the stairs to Carter's apartment, they noticed Billy Ray Watts following them up the
stairs.
After Cooper and Smith reached the apartment, Turman answered the door and allowed them to enter.
Watts also appeared at the door, but Turman blocked Watts's entry. Smith went down the apartment hall to
the restroom while Cooper sat at the kitchen table. As Watts stood in the doorway, he said he wanted to talk to
his homeboy Petty. He then pushed his way into the apartment. Watts and Petty then engaged in a
conversation about Petty having been released from jail. At some point, Watts pulled a pen (which Petty
thought was a weapon) from his pants pocket. Watts began to harass Petty and told Petty he wanted the pants
that Petty was packing. Petty told Watts not to mess with him.
Watts then picked up the pair of pants and told Petty that he was taking them. Petty told Watts to quit
playing around and one witness testified that Watts responded you show me the bank, to which Petty again
told Watts to quit playing around. Petty then took out a gun. Watts retreated towards the door as Petty cocked
the gun and fired at Watts. Cooper, who had been watching the exchange between Petty and Watts, testified
that she did not see Watts reveal a weapon or threaten Petty. After the first shot, Petty walked towards
the door and fired multiple bullets.
116 Nev. 321, 324 (2000) Petty v. State
walked towards the door and fired multiple bullets. Watts was left for dead in the entryway to Carter's apartment.
Cooper, Smith, and Turman provided similar testimony recounting the events of the shooting.
At trial, Petty testified in his own defense. He testified that he had been residing at the Sierra Vista
Apartments for about ten days prior to the shooting. Petty testified that he had known Watts for seven or eight of
those days. He then provided a list of reasons why he was afraid of Watts. According to Petty, he had seen Watts
steal a gold chain off a man's neck and had seen Watts strike people without provocation. Petty had also seen
Watts placed in a police car after Watts had hit a 7-Eleven clerk. Further, Petty testified that Watts had
previously patted Petty's pockets in search of money and he continued to be worried that Watts might rob him.
Finally, Petty testified that he had witnessed Watts shoot a gun randomly into the air.
Petty had also heard many rumors about Watts including: while high on drugs, Watts started a fight with
policemen for no reason; Watts had attempted to convince people to participate in robberies; Watts carried a
gun; and Watts had shot someone.
Petty testified that before he met Cooper and Smith in the Sierra Vista Apartments parking lot, he had just
returned to the apartment project via a taxicab. Petty had $400 in cash on his person because he intended to
leave for California that evening. When he got out of the taxi, Watts was standing right in front of him.
According to Petty, Watts was looking at [him] crazy, as he asked, What's up? Petty replied, Nothing, and
proceeded to the apartment. He then returned to the parking lot to ask Cooper and Smith for a ride. Turned
down, he returned to the apartment to pack his clothing. After Watts had pushed his way into the apartment,
Petty testified that Watts began messing with Petty's belongings. Finally, Petty testified, Watts came up to Petty's
right side and said, Nigger, Nigger, you see this? Petty said he saw a sharp, shiny object, and Watts then said,
Nigger, I stick it in your neck. Petty testified that he didn't know what the object was but that he thought it
could have been an ice pick.
After Watts picked up Petty's pants and said that he was taking them, Petty testified that Watts was reaching
in his pocket and that Petty thought Watts was reaching for a gun. Afraid that Watts might shoot him, Petty
testified that he then took out his gun and shot Watts in self-defense. Petty stated that he did not intend to kill
Watts, but that he was just shooting and that he didn't know what was happening.
Assessing the crime scene, a senior crime analyst observed the victim's body on the landing just in front of
the doorway to Carter's apartment. He also observed a pen and pen cap in the victim's right hand.
116 Nev. 321, 325 (2000) Petty v. State
victim's right hand. Another analyst discovered four spent shell casingsone inside the apartment and three
outside the apartment on the ground below the landing. The autopsy revealed Watts had been shot six times. One
of these wounds showed that the victim's body had been against a hard surface because the bullet was not able to
fully exit the body.
A jury found Petty guilty of first degree murder with the use of a deadly weapon. The district court sentenced
Petty to two consecutive terms of life with possibility of parole after twenty years.
DISCUSSION
[Headnote 1]
Petty argues that the jury trial verdict must be reversed and that he must be granted a new trial because the
district court erred by prohibiting the defense from presenting evidence of the victim's character for violence.
This court will overturn a district court's decision to admit or exclude evidence only when there has been an
abuse of discretion. See Greene v. State, 113 Nev. 157, 166, 931 P.2d 54, 60 (1997). Admissible character
evidence is governed by statute.
[Headnotes 2-4]
NRS 48.045(1)(b) states:
1. Evidence of a person's character or a trait of his character is not admissible for the purpose of
proving that he acted in conformity therewith on a particular occasion, except:
. . .
(b) Evidence of the character or a trait of character of the victim of the crime offered by an accused . .
. and similar evidence offered by the prosecution to rebut such evidence[.]
Furthermore, NRS 48.055 provides:
1. In all cases in which evidence of character or a trait of character of a person is admissible, proof
may be made by testimony as to reputation or in the form of an opinion. . . .
2. In cases in which character or a trait of character of a person is an essential element of a charge,
claim or defense, proof of specific instances of his conduct may be made on direct or cross-examination.
This court has held that NRS 48.045(1)(b) permits the accused to present evidence of the character of a crime
victim regardless of the accused's knowledge of the victim's character when it tends to prove that the victim was
the likely aggressor. See Burgeon v. State, 102 Nev. 43, 46, 714 P.2d 576, 578 (1986). With regard to NRS
48.055(1), we stated in Burgeon that proof of character may be established by testimony as to
reputation or in the form of an opinion."
116 Nev. 321, 326 (2000) Petty v. State
may be established by testimony as to reputation or in the form of an opinion. Id. Moreover, in Burgeon we
instructed:
When it is necessary to show the state of mind of the accused at the time of the commission of the offense
for the purpose of establishing self-defense, specific acts which tend to show that the deceased was a
violent and dangerous person may be admitted, provided that the specific acts of violence of the deceased
were known to the accused or had been communicated to him.
Id. at 45-46, 714 P.2d at 578.
[Headnote 5]
At trial, Petty offered evidence to prove Watts's violent character through the testimony of two probation
officers and a police officer whom the victim had assaulted. The first probation officer was to provide testimony
regarding a pre-sentence report on Watts evaluating Watts's criminal history after Watts had been convicted of
robbery with the use of a deadly weapon in 1990. The second probation officer was to provide testimony on a
second presentence report evaluating Watts after he was convicted of pointing a firearm at a human being in
1997. Petty argues that both probation officers intended to testify that Watts exhibited definite violent
characteristics.
Petty wished to present the probation officers' testimony to support his self-defense theory. This defense
placed the character of the victim, Watts, at issue. As we recognized in Burgeon, while presenting a defense of
self-defense, an accused is permitted to present evidence suggesting that the victim had exhibited violent
behavior. One method of presenting this evidence is through opinion testimony. Here, both probation officers
were to provide opinion testimony regarding their previous determinations that Watts showed a violent
character. Petty also offered to present a police officer, previously assaulted by the victim, to provide opinion
testimony that Watts had a violent character. While the officer's proffered testimony was based on only one
incident, the testimony was to be couched as his opinion. Since the testimony of the probation officers and the
police officer would have reflected their opinions, such testimony was admissible at trial under NRS 48.045 and
NRS 48.055 where the accused is presenting a defense of self-defense. We hold that the district court abused its
discretion by excluding this evidence.
[Headnotes 6, 7]
Additionally, the district court refused to allow Petty to present copies of Watts's 1990 and 1997 convictions.
The district court properly excluded evidence of the 1997 conviction, but abused its discretion by
excluding the 1990 conviction evidence.
116 Nev. 321, 327 (2000) Petty v. State
discretion by excluding the 1990 conviction evidence. As we stated in Burgeon, the accused may present
evidence of specific acts to show the accused's state of mind at the time of the commission of the crime only if
the accused had knowledge of the specific act. 102 Nev. at 45-46, 714 P.2d at 578. The record reveals that Petty
was aware that Watts had committed robberies. Although Petty's testimony does not explicitly mention the 1990
robbery, we hold that the evidence is admissible for purposes of showing the reasonableness of the appellant's
state of mind according to NRS 48.055(2) and our reasoning in Burgeon. However, nothing in the record
indicates that Petty had any knowledge of Watts's conviction for pointing a deadly weapon at a person. Petty's
testimony revealed that he had seen Watts fire a gun into the air, but Petty did not appear to know anything about
the 1997 conviction. Thus, the district court should have admitted the 1990 conviction to show the accused's
state of mind, but properly excluded the 1997 conviction as irrelevant on that issue.
Petty raises other issues on appeal; however we do not address these issues in view of our decision that
exclusion of the evidence of the victim's character warrants a new trial.
The judgment of conviction of first degree murder with use of a deadly weapon is reversed and remanded to
the district court.
____________
116 Nev. 327, 327 (2000) Hughes v. State
MICHAEL RAY HUGHES, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32567
No. 32568
No. 32569
March 10, 2000 996 P.2d 890
Appeals from judgments of conviction, pursuant to guilty pleas, of three counts of robbery with the use of a
deadly weapon and one count of second degree kidnapping of a person 65 years of age or older. Second Judicial
District Court, Washoe County; Brent T. Adams, Judge.
Defendant pleaded guilty in the district court to three counts of robbery with the use of a deadly weapon and
one count of second degree kidnapping of a person 65 years of age or older, and was adjudicated and sentenced
as habitual criminal. Defendant appealed. The supreme court held that habitual criminal adjudication did not
violate defendant's due process rights.
Affirmed.
Michael R. Specchio, Public Defender, and John Reese Petty, Deputy Public Defender, Washoe County, for
Appellant.
Hatlestad, Chief Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
The decision to adjudicate an individual as a habitual criminal is not an automatic one because the district court has broad
discretion to dismiss a habitual criminal allegation when the prior convictions are stale or trivial or in other circumstances where a
habitual criminal adjudication would not serve the purpose of the statute or the interests of justice. NRS 207.010(2).
Although due process requires the district court to exercise its discretion and weigh the appropriate factors for and against the
habitual criminal statute before adjudicating a person as a habitual criminal, the court is not required to make particularized findings
that it is just and proper to adjudicate a defendant as a habitual criminal, so long as the record as a whole indicates that the
sentencing court was not operating under a misconception of the law regarding the discretionary nature of a habitual criminal
adjudication and that the court exercised its discretion. U.S. Const. amend. 14; NRS 207.010(2).
Adjudication and sentence of defendant as habitual criminal did not violate defendant's due process rights, where circumstances of
sentencing hearing and district court's comments indicated that court understood that it had discretion in deciding whether to
adjudicate defendant as habitual criminal and that court exercised that discretion in doing so, and that mere fact that defendant had
four prior convictions in addition to three instant convictions did not form sole basis for court's decision. U.S. Const. amend. 14; NRS
207.010(2).
OPINION
Per Curiam:
Appellant Michael Ray Hughes challenges his adjudication and sentence as a habitual criminal pursuant
to NRS 207.010(1)(b).
The primary issue before this court is whether the district court violated Hughes' due process rights under the
Fourteenth Amendment of the United States Constitution by failing to make a specific finding that it was just
and proper to adjudicate Hughes a habitual criminal. We conclude that the record indicates that the district
court exercised its discretion and did not automatically adjudicate Hughes a habitual criminal based solely on the
existence of four prior felony convictions.
1

FACTS
The State charged Hughes in three separate cases with three counts of robbery with the use of a deadly
weapon and one count of second degree kidnapping of a person 65 years of age or older. Each case arose from
a different incident. In each case, the State also alleged that Hughes was a habitual criminal pursuant to NRS
207.010(1)(b) because he had at least two prior convictions for violent felonies. Hughes agreed to plead guilty
in all three cases. The State retained its right to argue at sentencing and to seek habitual criminal enhancement
in each case.
The district court conducted a single sentencing hearing on May 18, 1998. Hughes' counsel argued
extensively against habitual criminal adjudication and in favor of a sentence of a term of years. Counsel
addressed Hughes' criminal history, noting that it started after Hughes was discharged from the military and
arguing that Hughes only committed criminal offenses to support his drug and/or alcohol dependency. Counsel
argued that Hughes had conducted himself in accord with prison rules during prior periods of incarceration
and that Hughes desired to end his chemical dependency. Counsel concluded that given that Hughes was
thirty-seven years of age and had not physically harmed his victims, sentencing him to definite terms of years
would be a sufficient deterrent to both Hughes and others while giving Hughes a glimmer of hope of being
released from prison.
The State offered four certified judgments of conviction, which were entered into evidence.
2
The prosecutor
argued that Hughes' criminal history demonstrated that Hughes would continue to commit crimes unless he was
incarcerated. The prosecutor further argued that although Hughes had not done physical harm to
his victims,
__________

1
Hughes also contends that the district court abused its discretion by adjudicating him as a habitual
criminal because his prior convictions are trivial and stale and that the sentences imposed constitute cruel and
unusual punishment. We have considered these arguments and conclude that they lack merit and do not warrant
discussion in this opinion.

2
Neither the prior judgments of conviction nor the presentence investigation report have been provided to
this court. From the record it appears that the prior convictions offered by the State included: a 1980
conviction for false imprisonment, a 1981 conviction for attempted robbery, a 1982 conviction for robbery, and
a 1989 conviction for robbery.
argued that although Hughes had not done physical harm to his victims, his conduct was escalating in
seriousness as evidenced by his use of a firearm in two of the instant offenses and his conduct in leading the
victim in the third offense to believe that he had a gun and would harm her. The prosecutor concluded that
Hughes' prior criminal history and the circumstances surrounding the instant offenses warranted adjudication as
a habitual criminal.
In addition to the arguments of counsel for Hughes and the State, the court considered a statement by
Hughes. At the conclusion of the sentencing hearing, the court stated:
The Court has read and considered the presentence report in each of these cases, the correspondence
which was submitted to the Court for review, including the victim impact statement and the
correspondence delivered from Mr. Hughes's counsel and read by the defendant in court this morning.
The Court finds that, based upon Exhibit 1, 2, 3, and 4 in evidence and the circumstances related to
this hearing, the defendant is a habitual criminal.
Pursuant to NRS 207.010(1)(b),
3
the court sentenced Hughes to serve three consecutive terms of life in prison
without the possibility of parole for the robbery with use of a deadly weapon convictions. The court also
sentenced Hughes to a concurrent total term of twelve (12) to thirty (30) years for second degree kidnapping of
an elderly person.
4
Hughes filed timely notices of appeal from each of the judgments of conviction.
5

DISCUSSION
Hughes contends that the district court failed to exercise its discretion in adjudicating him as a habitual
criminal. Specifically, Hughes asserts that the district court based its decision solely upon the existence of the
prior felony convictions without making specific findings that it was just and proper to adjudicate him as a
habitual criminal.
__________

3
NRS 207.010(1)(b) provides that a person convicted of [a]ny felony, who has previously been three times
convicted . . . of any crime which under the laws of the situs of the crime or of this state would amount to a
felony . . . is a habitual criminal and shall be punished by imprisonment for (1) life without the possibility of
parole; (2) life with the possibility of parole after serving a minimum of 10 years; or (3) a definite term of 25
years, with parole eligibility after serving a minimum of 10 years.

4
The court sentenced Hughes for the second degree kidnapping of an elderly person pursuant to NRS
200.330 and NRS 193.167, not as a habitual criminal pursuant to NRS 207.010(1)(b).

5
We previously approved a stipulation by the parties and consolidated the cases for all appellate purposes.
See NRAP 3(b).
a habitual criminal. Relying on Walker v. Deeds, 50 F.2d 670 (9th Cir. 1995), Hughes argues that the district
court's failure to make an individualized determination that it was just and proper that Hughes be adjudged a
habitual offender violated Hughes' due process rights. See U.S. Const. amend. XIV.
[Headnote 1]
The Ninth Circuit's decision in Walker is based upon this court's decision in Clark v. State, 109 Nev. 426,
851 P.2d 426 (1993). In Clark, this court addressed concerns that the district court had mistakenly believed that
once the requisite felonies were proved, the court's authority was limited to deciding only whether the defendant
should be sentenced to life imprisonment with or without the possibility of parole.
6
109 Nev. at 427-28, 851
P.2d at 427. Clark explained that the decision to adjudicate an individual as a habitual criminal is not an
automatic one because the district court has broad discretion to dismiss a habitual criminal allegation. Id. at 428,
851 P.2d at 427 (citing NRS 207.010(4) (currently codified at NRS 207.010(2)). As this court had previously
explained, the district court may dismiss a habitual criminal allegation when the prior convictions are stale or
trivial or in other circumstances where a habitual criminal adjudication would not serve the purpose of the statute
or the interests of justice. See French v. State, 98 Nev. 235, 237, 645 P.2d 440, 441 (1982).
Clark further concluded that it was not clear from the record whether the trial court had actually exercised its
discretion. Id. at 428-29, 851 P.2d at 427-28. The record indicated that, in imposing the habitual criminal
enhancement, the trial court stated that it had found beyond a reasonable doubt that the prior convictions
submitted by the District Attorney's Office in this particular matter are legal convictions and are appropriate . . .
[for] enhancement pursuant to [NRS] 207.010.' Id. at 428, 851 P.2d at 427. Clark explained that this comment
did not clearly disclose that the court weighed the appropriate factors for and against the habitual criminal
enhancement and then, in the exercise of discretion, decided to adjudicate Clark as a habitual criminal. Id.
The record also revealed the following comment by the trial court:
NRS 207.010, the operative part of the statute, Every person convicted in this state of any crime, of
any felony, who has previously been three times convicted . . .'
__________

6
Clark was convicted, pursuant to a jury verdict, of one count of failure to appear, which carried a sentence
of not less than one nor more than six years imprisonment. At sentencing the State presented evidence of three
prior felony convictions (burglary, forgery and possession of a stolen motor vehicle). The court sentenced Clark
as a habitual criminal to life in prison with the possibility of parole. Clark, 109 Nev. at 426-27, 851 P.2d at 426.
has previously been three times convicted . . .' The way I read it, it says, . . . shall be punished by
imprisonment in the state prison for life with or without the possibility of parole.'
Clark, 109 Nev. at 428-29, 851 P.2d at 427-28.
Based on these indications from the record this court concluded:
It appears likely, or at least strongly possible, that the trial court thought that once three convictions
were established, Clark shall be punished, and that the only discretion allowable was between life with
the possibility of parole or life without the possibility of parole. As noted above, however, it was
incumbent upon the trial court to weigh properly whether the habitual criminality count should have been
dismissed pursuant to the discretion conferred by NRS 207.010(4). Based upon what looks very much
like a misunderstanding on the part of the trial judge, we have decided to send this case back for
resentencing.
Id. at 429, 851 P.2d at 428 (footnote omitted).
Two years later, the Ninth Circuit interpreted Clark to require the sentencing judge to review and make
particularized findings that it is just and proper' for a defendant to be adjudged a habitual offender. Walker v.
Deeds, 50 F.3d 670, 673 (9th Cir. 1995). The Walker court further concluded that Nevada law created a
constitutionally protected liberty interest in such a sentencing procedure. Id. The court explained:
The trial court in this case did not clearly disclose that it weighed the appropriate factors for and
against the criminal enhancement. The court did not decide that it was just and proper, based on the
nature and gravity of his prior convictions, to adjudge Walker a habitual offender under the relevant
statute.
Id. (quoting Clark, 109 Nev. at 428, 851 P.2d at 427). The court then concluded that because the trial court did
not make the requisite individualized determination that it was just and proper' to adjudicate Walker as a
habitual criminal as mandated by Nevada law, Walker's due process rights had been violated. Id.
[Headnote 2]
As yet, this court has not addressed Walker in a published opinion. We take this opportunity to do so. Our
primary concern in Clark was that the sentencing court may have misunderstood the law and, as a result, did not
exercise its discretion in adjudicating Clark as a habitual criminal. The Walker court's interpretation of Clark is
correct to the extent that it states that Nevada law requires a sentencing court to exercise
its discretion and weigh the appropriate factors for and against the habitual criminal
statute before adjudicating a person as a habitual criminal.
Clark is correct to the extent that it states that Nevada law requires a sentencing court to exercise its discretion
and weigh the appropriate factors for and against the habitual criminal statute before adjudicating a person as a
habitual criminal. However, nothing in Clark stands for the proposition that in meeting this obligation the
sentencing court must utter specific phrases or make particularized findings that it is just and proper to
adjudicate a defendant as a habitual criminal. The sole issue pursuant to Clark is whether the sentencing court
actually exercised its discretion. While it may be easier to answer this question if the sentencing court makes
particularized findings and specifically addresses the nature and gravity of the prior convictions, this court has
never required the district courts to utter talismanic phrases. See Bryant v. State, 102 Nev. 268, 721 P.2d 364
(1986). Instead, this court looks to the record as a whole to determine whether the sentencing court actually
exercised its discretion. Thus, as long as the record as a whole indicates that the sentencing court was not
operating under a misconception of the law regarding the discretionary nature of a habitual criminal adjudication
and that the court exercised its discretion, the sentencing court has met its obligation under Nevada law.
[Headnote 3]
We turn now to the record in this case. After hearing extensive argument from counsel for Hughes and the
State and comments from Hughes, the district court stated:
The Court has read and considered the presentence report in each of these cases, the correspondence
which was submitted to the Court for review, including the victim impact statement and the
correspondence delivered from Mr. Hughes's counsel and read by the defendant in court this morning.
The Court finds that, based upon Exhibit 1, 2, 3, and 4 in evidence and the circumstances related to
this hearing, the defendant is a habitual criminal.
We conclude that the circumstances of the sentencing hearing and the district court's comments indicate that the
court understood that it had discretion in deciding whether to adjudicate Hughes as a habitual criminal and that
the court exercised that discretion in adjudicating Hughes a habitual criminal. The fact that the court did not
specifically address the nature and gravity of the prior or instant convictions is not determinative as the court
clearly disclosed that it had considered all of the arguments and evidence in deciding to adjudicate Hughes as a
habitual criminal. Unlike Clark, it does not appear strongly possible, or even likely, that the trial court in this
case thought that the requisite number of prior convictions automatically equated to habitual
criminal status.
convictions automatically equated to habitual criminal status. Accordingly, we conclude that the procedure
utilized by the district court in adjudicating Hughes as a habitual criminal did not violate Hughes' due process
rights.
CONCLUSION
We conclude that the totality of the circumstances demonstrates that the district court understood that it had
discretion in adjudicating Hughes as a habitual criminal and that it actually exercised that discretion. We
therefore affirm the judgments of conviction and sentences.
____________
116 Nev. 334, 334 (2000) Jackson v. State
MELVIN LEON JACKSON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32933
March 13, 2000 997 P.2d 121
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of burglary and one count of
robbery. Eighth Judicial District Court, Clark County; Mark W. Gibbons, Judge.
Defendant was convicted in the district court of burglary and robbery. Defendant appealed. The supreme
court, Maupin, J., held that State was not required to give justifiable reason for its refusal to stipulate to
admissibility of results of defendant's polygraph test.
Affirmed.
Morgan D. Harris, Public Defender, and Craig F. Jorgenson and Stacey Roundtree, Deputy Public
Defenders, Clark County, for Appellant.
1. Criminal Law.
A defendant's right to present relevant evidence is not unlimited, being subject to reasonable restrictions.
2. Criminal Law.
Results of polygraph test may be considered reliable when taken under proper conditions and with proper safeguards in place,
including the requirement of a written stipulation signed by the prosecuting attorney, the defendant and his counsel providing for
defendant's submission to the test. Absent a written stipulation, polygraph evidence may properly be excluded.
3. Criminal Law.
State was not required to give justifiable reason for its refusal to stipulate to admissibility of results of robbery defendant's
polygraph test, and those results were properly excluded in the absence of such stipulation.
4. Criminal Law.
Any party to any criminal or civil action may refuse to agree to the stipulation of a polygraph test for any reason, or no reason at
all.
OPINION
A jury convicted Melvin Leon Jackson of burglary and robbery in connection with an alleged
shoplifting incident at a K-Mart outlet in Las Vegas, Nevada. The factual issues at trial involved whether
Jackson actually removed a piece of electronic equipment from the store, and whether he later acted in
self-defense when accosted by security personnel. He contends on appeal that the district court erred in
refusing to admit the results of a polygraph test taken with regard to these factual issues.
At trial, Jackson's attorney requested that the State enter into a stipulation allowing admission into
evidence of the results of a polygraph test to be taken by Jackson. The State declined and Jackson
proceeded to take the polygraph test. Thereafter, Jackson filed a motion with the district court to allow
admission of the test results for consideration by the jury. This motion was denied and, as noted, Jackson
was convicted of burglary and robbery. He appeals the judgment entered on these convictions.
[Headnote 1]
A defendant's right to present relevant evidence is not unlimited, being subject to reasonable
restrictions. See United States v. Scheffer, 523 U.S. 303, 308 (1998). In Scheffer, the United States
Supreme Court was faced with the question of whether a per se rule against admission of polygraph
evidence violated an accused's Fifth or Sixth Amendment rights to present a defense. In determining that
such a rule was not a violation of constitutional rights, the Court reasoned [t]here is simply no consensus
that polygraph evidence is reliable. Id. at 309.
[Headnote 2]
In Nevada, polygraph results may be considered reliable when taken under proper conditions and
with proper safeguards in place. See Corbett v. State, 94 Nev. 643, 644-45, 584 P.2d 704, 705 (1978).
However, the safeguards include the requirement of a written stipulation signed by the
prosecuting attorney,
written stipulation signed by the prosecuting attorney, the defendant, and his counsel providing for defendant's
submission to the test. See Corbett, 94 Nev. at 644-45, 584 P.2d at 705. Absent a written stipulation, polygraph
evidence may properly be excluded. See Domingues v. State, 112 Nev. 683, 695, 917 P.2d 1364, 1373 (1996).
[Headnote 3]
Jackson contends that the State's refusal to stipulate to the admissibility of a polygraph test prior to
administration of the test denied him the fundamental right to present evidence in support of his defense. We
disagree and conclude that the district court did not err in its refusal to admit Jackson's polygraph results into
evidence. Here, the district court, consistent with this court's decision in Corbett, properly excluded the test
results for lack of a written stipulation by all of the parties below.
[Headnote 4]
Jackson claims that the prosecution must have a justifiable reason for refusing to stipulate to the admissibility
of a polygraph test. There is no support for this proposition. We conclude that any party to any criminal or civil
action may refuse to agree to the stipulation of a polygraph test for any reason, or no reason at all. Until and
unless a scientific basis for reliability of polygraph testing is established, the safeguards articulated in Corbett
provide a reasonable threshold for admissibility. Thus, the State was not required to give a reason for its refusal
to agree with Jackson's proposed stipulation.
1

In light of the above, we hereby affirm the judgment of the district court below.
__________

1
Jackson places primary reliance on McMorris v. Israel, 643 F.2d 458 (7th Cir. 1981), in support of his
argument that there must be justifiable reasons for a prosecutor's refusal to stipulate to the admission of
polygraph results. We reject this approach. First, the McMorris court was construing a Wisconsin case on the
subject, which was later overturned. See State v. Dean, 307 N.W.2d 628, 653 (1981) (holding that it is error to
admit polygraph evidence in a criminal proceeding unless a stipulation was executed prior to September 1,
1981). Second, we reject the notion that polygraph testing has sufficient scientific reliability that would support
admission of such evidence over objection by one of the parties to a piece of litigation.
____________
116 Nev. 337, 337 (2000) State v. Freese
THE STATE OF NEVADA, Appellant, v. BRYAN SCOTT FREESE, Respondent.
No. 33274
March 13, 2000 997 P.2d 122
Appeal from an order of the district court granting a postconviction petition for writ of habeas corpus. Eighth
Judicial District Court, Clark County; Michael L. Douglas, Judge.
Defendant brought post-conviction petition for writ of habeas corpus, alleging the inadequacy of the oral
canvass before he pleaded guilty to sexual assault upon minor under age sixteen. The district court granted the
petition. State appealed. The supreme court, Becker, J., held that: (1) a trial court's oral canvass of the defendant
before finding a guilty plea is voluntary need not be ritualistic or contain specific inquiries, overruling
Koerschner v. State, 111 Nev. 384, 892 P.2d 942 (1995), and Kidder v. State, 113 Nev. 341, 934 P.2d 254
(1997); and (2) under the totality of the circumstances, defendant's plea was made freely, voluntarily, and
knowingly.
Reversed.
En banc reconsideration granted; reversed and remanded. 116 Nev. 1097, 13 P.3d 442 (2000).
Tufteland, Chief Deputy District Attorney, Clark County, for Appellant.
Carmine J. Colucci, Las Vegas, for Respondent.
1. Criminal Law.
Plea agreement, combined with oral canvass conducted by district court, established by totality of the circumstances that
defendant's guilty plea to sexual assault upon minor under age sixteen was result of voluntary and informed choice, though trial court
failed to review elements of the crime, where defendant admitted to facts in plea memorandum and the memorandum and attached
exhibit adequately advised defendant of elements of the crime.
2. Criminal Law.
The trial court's oral canvass of the defendant before finding a guilty plea is voluntary need not be ritualistic or contain specific
inquiries; overruling Koerschner v. State, 111 Nev. 384, 892 P.2d 942 (1995), and Kidder v. State, 113 Nev. 341, 344, 934 P.2d 254
(1997).
3. Criminal Law.
Appellate court will not invalidate a guilty plea, as long as the totality of the circumstances, as shown by the record, demonstrates
that the plea was knowingly and voluntarily made and that the defendant understood the nature of the offense and the consequences of
the plea.
4. Criminal Law.
A defendant's comprehension of the consequences of a plea, the voluntariness of a plea, and the general validity of a plea are to be
determined by reviewing the entire record and looking to the totality of the facts and circumstances surrounding the plea.
5. Criminal Law.
A court must be able to conclude from the oral canvass, any written plea memorandum, and the circumstances surrounding the
execution of the memorandum, such as whether the defendant read it and whether the defendant had any questions about it, that the
defendant's plea was freely, voluntarily, and knowingly made.
6. Criminal Law.
Defendant was aware of the rights he was waiving by pleading guilty to sexual assault upon minor under age sixteen, though
during oral canvass the trial court did not ask defendant specific questions regarding his understanding of the rights he was waiving,
where plea agreement described the rights to be waived and defendant told the trial court he had read and understood the plea
agreement.
OPINION
In 1996, respondent Bryan Scott Freese (Freese) was charged with nine criminal counts arising
from sexual conduct with a minor. Pursuant to plea negotiations, Freese entered into a written plea
agreement wherein he agreed to plead guilty to one count of sexual assault upon a minor under sixteen
years of age. Freese entered his guilty plea on May 20, 1997. Freese filed a post-conviction petition for a
writ of habeas corpus in 1998 alleging ineffective assistance of counsel and challenging the sufficiency of
the plea canvass.
The district court
1
granted the petition, finding that the canvass conducted by the district court was
inadequate.
2
We disagree, and for the reasons set forth below, we reverse the district court's order
granting the post-conviction writ of habeas corpus.
3

FACTS
In July of 1996, Ethan Williams (Williams) was a neighbor of Freese. Williams' two-story home
enabled him to view areas of the Freese residence.
__________

1
The plea was entered before the Honorable Stephen Huffaker. Due to a general reassignment of
criminal cases, the Honorable Michael L. Douglas heard the petition.

2
The issues relating to ineffective assistance of counsel were never addressed or decided by the district
court.

3
Appellant's pending motion to expedite appeal is denied as moot.
the Freese residence. While in the bathroom of his residence, Williams observed Freese engaging in sexual
activities, including what appeared to be sexual intercourse with a minor female child who was later determined
to be five years old. Williams then contacted the police and reported what he had observed.
After responding to Williams' report and talking to the child, the police took her to Sunrise Hospital where a
physical examination was conducted by a pediatrician. The examination revealed evidence of semen around the
child's genital area. Freese was informed of his Miranda rights, waived them, and gave a voluntary statement to
the police. Freese admitted to masturbating in the child's presence and ejaculating on her.
On October 17, 1996, the Clark County Grand Jury returned a True Bill against Freese containing four
counts of lewdness with a child under the age of fourteen years and five counts of sexual assault upon a minor
under sixteen years of age. On May 20, 1997, Freese entered into a written plea agreement wherein he agreed to
plead guilty to one count of sexual assault with a minor under sixteen years of age. In return for Freese's plea of
guilty, the district attorney's office agreed not to proceed on the remaining counts. Freese then entered his guilty
plea pursuant to the negotiations.
Prior to accepting the guilty plea, the district court, in addition to reviewing the guilty plea memorandum,
conducted the following canvass of Freese:
THE COURT: Is your plea of guilty freely and voluntarily made?
FREESE: Yes, it is.
THE COURT: Is Mr. Wolfson your attorney?
FREESE: Yes, he is.
THE COURT: Have you discussed this matter with him?
FREESE: Yes, I have.
THE COURT: Has he explained the nature of the offense here charged against you?
FREESE: Yes.
THE COURT: Did he tell you what the elements of that offense are which the state would have to
prove at the time of trial?
FREESE: Yes, he has.
THE COURT: Do you feel you understand those matters?
FREESE: Yes.
THE COURT: Did he tell you what sentence the court could impose by virtue of your guilty plea?
THE COURT: What is your understanding of what the maximum sentence is?
FREESE: Life with parole up to 20 or a sentence of five to 20 years.
THE COURT: Exactly. Do you understand that the matter of sentencing is strictly up to the court and
no one else can promise you anything?
FREESE: Yes, I do.
THE COURT: Do you understand that this is a nonprobationable offense, that you must serve some
jail time?
FREESE: Yes, I do.
THE COURT: Have you read the guilty plea agreement on file?
THE COURT: Do you understand everything that's in it?
THE COURT: Is it all true to the best of your knowledge?
FREESE: Yes.
THE COURT: Did you sign the agreement, Mr. Freese?
THE COURT: When you read it and signed it, was Mr. Wolfson, your attorney, available to you to
answer any questions that you might have?
FREESE: Yes.
THE COURT: When you read and signed the agreement, Mr. Freese, were you under the influence
of alcohol, drugs, medicine, or illness, anything like that?
FREESE: No, Sir.
THE COURT: In this guilty plea agreement you make a plea negotiation with the state and as part of
that plea negotiation you plead guilty to this offense of sexual assault with a minor under 16 years of age.
Do you think it's in your best interest to do that?
FREESE: Yes, I do.
THE COURT: Does this plea agreement state the entire negotiation you have made with the state?
MR. WOLFSON: May I interject? I think inferentially it does, but to be totally specific, there are
more counts in the original indictment. This amended indictment supercedes the original indictment, so
by pleading guilty to the one count inferentially, the state will not be proceeding on the other counts. It
doesn't say that here, but by inference that's what we understand the plea bargain to be.
THE COURT: Is that your understanding, Mr. Freese?
FREESE: Yes, Sir.
THE COURT: The court accepts defendant's plea of guilty under the plea agreement.
Based upon the written plea memorandum and Freese's responses to the oral canvass, the district court
determined that Freese understood the nature of the offense and the consequences of his plea and that his plea
was freely, voluntarily and knowingly made. The district court then accepted the guilty plea.
On September 3, 1998, Freese filed a post-conviction petition for a writ of habeas corpus alleging ineffective
assistance of counsel and challenging the sufficiency of the plea canvass. On October 14, 1998, the district court
granted the petition solely on the ground that the plea canvass conducted by the district court judge was
inadequate. Specifically, the district court found that the judge failed to ask Freese if Freese understood what
rights he was waiving as a result of a guilty plea and to review the elements of the crime with Freese.
The State of Nevada now appeals.
DISCUSSION
[Headnote 1]
The State contends that the district court erred by concluding that the plea canvass conducted by the district
court was insufficient to ensure that the plea was voluntary and that Freese understood the nature of the offense
and the consequences of his plea. The State argues that the plea agreement, combined with the canvass
conducted by the district court, establishes by a totality of the circumstances that Freese's guilty plea was the
result of a voluntary and informed choice. We agree.
The district court based its decision in this case on Koerschner v. State, 111 Nev. 384, 892 P.2d 942 (1995).
In Koerschner, this court held that NRS 174.035(1) requires the district court to personally' address criminal
defendants who plead guilty and that the existence of a written plea agreement [does] not remedy the district
court's failure to personally canvass. Id. at 386-87, 892 P.2d at 944. The version of NRS 174.035 at issue in
Koerschner read in relevant part: The court . . . shall not accept [a plea of guilty] . . . without addressing the
defendant personally and determining that the plea is made voluntarily with understanding of the nature of the
charge and consequences of the plea. However, NRS 174.035 was amended prior to the onset of the current
proceedings and no longer requires the courts to personally address a defendant regarding a plea agreement
unless the agreement is made orally. See NRS 174.035(2). Accordingly, Koerschner is not applicable to the
current version of NRS 174.035.
[Headnotes 2, 3]
In addition, to the extent that Koerschner may be read to require a ritualistic oral canvass of a defendant to
determine if a defendant understands the nature of the offense and the consequences of a plea of guilty before
finding a plea is voluntary, it is expressly overruled. This court will not invalidate a plea as long as the totality of
the circumstances, as shown by the record, demonstrates that the plea was knowingly and voluntarily made and
that the defendant understood the nature of the offense and the consequences of the plea. See Kidder v. State,
113 Nev. 341, 344, 934 P.2d 254, 256 (1997).
4

[Headnotes 4, 5]
A defendant's comprehension of the consequences of a plea, the voluntariness of a plea and the general
validity of a plea are to be determined by reviewing the entire record and looking to the totality of the facts and
circumstances surrounding the plea. A court must be able to conclude from the oral canvass, any written plea
memorandum and the circumstances surrounding the execution of the memorandum (i.e., did the defendant read
it, have any questions about it, etc.) that the defendant's plea was freely, voluntarily and knowingly made. No
specific formula for making this determination is required. The record in this case demonstrates that Freese's
guilty plea was freely, voluntarily and knowingly made, therefore the district court erred in granting the petition.
Waiver of rights
[Headnote 6]
Freese signed a plea agreement indicating that he waived the right to: (1) the privilege against
self-incrimination; (2) a speedy and public trial by an impartial jury; (3) confront and cross-examine witnesses;
(4) subpoena witnesses to testify on his behalf; (5) testify in his own defense; and (6) appeal the conviction.
At the time of the entry of the plea, Freese was questioned about whether he read and understood the
agreement and he answered affirmatively to both questions. Freese indicated he did not have any questions
about the agreement. Moreover Freese's correspondence to the district court supports the finding that Freese is
an intelligent, competent individual who understood the written memorandum. Freese does not assert that he
was incapable of reading or understanding the agreement, only that the district court never asked him
specific questions.
__________

4
To the extent that Kidder may be read to require that specific inquires must be made by the district court
during a plea canvass, it is also overruled.
district court never asked him specific questions.
5
We conclude, under the totality of the facts and
circumstances of this case, including the plea agreement's description of the rights to be waived by Freese,
Freese's statements that he read, understood and signed the agreement and his other responses to district court,
that Freese was aware of the rights he was waiving.
The elements of the crime
During its plea canvass, the district court questioned Freese regarding whether his attorney explained the
elements of the offense to him and whether he understood those elements. Freese answered yes to both
questions. In addition, the plea agreement stated I understand that by pleading guilty I admit the facts which
support all the elements of the offense to which I now plead as set forth in Exhibit 1.' Exhibit 1 is the
charging document which delineated the elements of the crime of sexual assault upon a minor under sixteen
years of age. We conclude that the district court's plea canvass was not inadequate for failure to review the
elements of the crime because Freese admitted to facts in the plea memorandum, and the memorandum and
attached exhibit adequately advised him of the elements of the charges. See Hurd v. State, 114 Nev. 182, 953
P.2d 270 (1998).
CONCLUSION
After reviewing the record and considering the totality of the facts and circumstances surrounding the plea
at issue, we conclude that the canvass conducted by the district court, together with the signed plea agreement,
reveal that Freese understood the nature of the offense and the consequences of his plea. Freese freely,
voluntarily and knowingly entered his plea of guilty. We therefore reverse the district court's order granting
Freese's petition for writ of habeas corpus.
__________

5
In fact, at the time of the oral arguments before the district court, the State indicated that Freese was an
employee of Clark County and an honorably discharged member of the armed forces at the time he entered his
plea. Freese did not contest the accuracy of this information.
____________
116 Nev. 344, 344 (2000) Romero v. State
JOSEPH DANIEL ROMERO, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 33365
March 13, 2000 996 P.2d 894
Appeal from a judgment of conviction entered pursuant to a jury verdict of one count each of burglary,
aggravated stalking, and felony malicious destruction of private property. Eighth Judicial District Court, Clark
County; John S. McGroarty, Judge.
Following jury trial before the district court, defendant was convicted of burglary, aggravated stalking, and
felony malicious destruction of private property. Defendant appealed. The supreme court, Becker, J., on issue of
first impression, held that: (1) fair market value of similar item, not replacement cost, determines the value of the
property affected for purposes of determining level of culpability for malicious destruction of private property
when property is totally destroyed; (2) cost of repair or restoration determines loss resulting from the offense for
purposes of same statute when property is only partially destroyed; and (3) evidence of fair market value of
destroyed items and cost of security guard did not show $5,000 damage level necessary to sustain conviction of
felony malicious destruction of property.
Affirmed in part, reversed in part and remanded.
Morgan D. Harris, Public Defender, and Jennifer L. Haight, Deputy Public Defender, Clark County, for
Appellant.
1. Statutes.
Penal statutes should be narrowly construed where they are ambiguous.
2. Malicious Mischief.
In statute defining offense of felony malicious destruction of private property, phrase value of the property affected or the loss
resulting from the offense, which must exceed $5,000, is subject to more than one reasonable interpretation and is therefore
ambiguous and must be narrowly construed. NRS 193.155, 206.310.
The overall intent of statutes defining various levels of culpability of malicious destruction of private property based on value of
the property affected or loss resulting from the damage is to make criminal penalties proportionate to the value of the property affected.
NRS 193.155, 206.310.
Under malicious destruction of private property statute requiring that value of the property affected or loss resulting from the
damage to property equal or exceed sum of $5,000 to constitute felony,
property equal or exceed sum of $5,000 to constitute felony, fair market value of property is appropriate standard when property is
completely destroyed. Fair market value of property controls unless the fair market value cannot be reasonably determined at which
point alternate evidence of value may be offered such as new replacement. NRS 193.155, 206.310.
Statutory threshold for determining level of culpability under malicious destruction of private property statute when property is
only partially destroyed is loss resulting from the offense, which is cost related to repair or restore the property and must be directly
tied to damage to property. Ancillary consequences that may accompany crime in general, such as need to provide increased security,
cannot be included to meet statutory threshold. NRS 193.155, 206.310.
Evidence of replacement cost, as opposed to fair market value, of items destroyed when defendant threw human excrement at
employee inside retail store was insufficient to show that value of the property affected exceeded $5,000, as required for felony
conviction, without first establishing need to replace property with new, rather than used items; however, evidence was sufficient to
show that damage exceeded $250, so as to support gross misdemeanor conviction. NRS 193.155, 206.310.
Cost of hiring security guard was not a loss resulting from the offense of malicious destruction of private property, and thus
could not be considered in determining whether the value of the property affected and the loss resulting from the offense when
defendant threw human excrement at employee inside retail store exceeded $5,000 threshold for felony conviction. NRS 193.155,
206.310.
OPINION
Appellant Joseph Daniel Romero damaged property when he threw human excrement at an individual
inside of a retail store in Las Vegas. Romero was convicted of burglary, aggravated stalking, and
malicious destruction of private property. Romero contends that the State failed to establish that the
value of the damaged property or the loss resulting from the offense exceeded the $5,000 felony threshold.
1
As a result, he argues that the State failed to prove the elements of felony malicious destruction of
private property beyond a reasonable doubt. We agree, and for the reasons set forth below, we reverse
Romero's conviction for felony malicious destruction of private property and remand the matter to the
district court with instructions to enter a judgment of conviction of gross misdemeanor
malicious destruction of private property.
__________

1
Romero raises several other issues, including the constitutionality of NRS 200.275. Based upon the
record and the briefs filed herein, we conclude that Romero's remaining contentions on appeal are
without merit. Accordingly, we affirm Romero's burglary and aggravated stalking convictions.
to the district court with instructions to enter a judgment of conviction of gross misdemeanor malicious
destruction of private property.
FACTS
On January 8, 1998, Romero walked into a retail store in Las Vegas and threw human feces and urine from
a container he was carrying at a store employee. The excrement not only soaked the employee's clothing, but
also scattered on merchandise and furnishings, causing significant property damage. Romero was a former
employee of the store and prior to that evening, Romero made repeated telephone and facsimile threats,
including death threats, to employees at the store over an extended period of time. The threats ceased when
Romero was arrested.
At trial, the State admitted into evidence a videotape showing the damage to the merchandise, furnishings
and clothing. A former store manager, Dawit Ambaye (Ambaye), testified that, based on figures he received
from the store's corporate office, individual contractors and vendors provided by the corporate office and his
own experience, he compiled an expense list estimating the costs incurred as a result of the property damage. In
particular, this list outlined replacement figures for a computer ($950), a wall unit ($1,500), and a light fixture
($160) as well as the cost of carpet cleaning and repair ($1,050). The list also included the replacement cost of
damaged store merchandise ($250) and the employee's clothing ($150). Ambaye further testified that, in
addition to the replacement figure for the computer, the expense list included the salvage value of the computer
($950). Ambaye testified that the damages incurred by the store as a result of Romero's conduct totaled $5,010.
While the term fair market value was not used specifically in evaluating the damages suffered by the store,
the testimony did contain information from which a jury could determine the fair market value of some of the
destroyed property.
Additionally, evidence was admitted of the expenses paid by the store to hire a security guard to protect
frightened employees for several weeks after the incident.
DISCUSSION
A felony conviction for malicious destruction of private property under NRS 206.310 and 193.155 must be
supported by proof that the value of the property affected or the loss resulting from the damage to property
equals or exceeds the sum of $5,000.
2
See Rossana v. State, 113 Nev. 375, 3S4, 934 P.2d 1045,
1050-51 {1997).
__________

2
NRS 206.310 provides, in pertinent part, that:
Every person who shall willfully or maliciously destroy or injure any real or personal property . . . shall
be guilty of a public offense pro-
Rossana v. State, 113 Nev. 375, 384, 934 P.2d 1045, 1050-51 (1997). We have never decided, however, the
meaning of the phrases value of the property affected or loss resulting from the offense.
For other property crimes, such as larceny, we have concluded that the measure of the damages sustained as a
result of the theft should generally be the fair market value of the stolen property. See, e.g., Bryant v. State, 114
Nev. 626, 629, 959 P.2d 964, 966 (1998). The cost to replace a stolen item may be relevant to establishing the
fair market value of that property when the replacement is a used item of similar age and specifications as the
stolen item. However, when the replacement cost is based upon the current market price for an unused new item,
such evidence alone is generally not sufficient to establish the monetary thresholds which distinguish between
misdemeanor, gross misdemeanor and felony property crimes.
3
Such a rule is mandated by the language of the
statute, which separates the various degrees of theft based upon the value of the property that was stolen, not the
cost to replace the stolen property with a brand new item.
Romero contends we should adopt the Bryant standard in cases involving the malicious destruction of private
property. Using this standard, much of the testimony of Ambaye would be insufficient to establish that the value
of the property destroyed met or exceeded the $5,000 requirement of the statutes. Specifically, Romero argues
that the testimony regarding the cost to replace old equipment with new equipment and the hiring of the security
guard would be improper and, without such testimony, the amount of the damages is under $5,000.
The State argues that Bryant is not controlling and urges us to adopt a different standard for malicious
destruction of private property cases. The State contends that the words value of the property affected or the
loss resulting from the offense have a broader meaning than the language contained in the larceny statutes at
issue in Bryant.
__________
portionate to the value of the property affected or the loss resulting from such offense.
NRS 193.155 provides, in pertinent part, that:
Every person who is guilty of a public offense proportionate to the value of the property affected or the
loss resulting from the offense shall be punished as follows:
1. Where the value of the loss is $5,000 or more . . . for a category C felony as provided in NRS
193.130.

3
There are instances where the value of the stolen property might only be established by original or
replacement costs. For example, the value of a framed piece of artwork by an unknown artist might be best
determined by the initial price of the piece or the replacement cost. Bryant merely requires the prosecution to lay
a foundation for the admission of valuations that are not based on a traditional fair market value analysis.
statutes at issue in Bryant. Thus if a business is temporarily closed or has to hire extra security as a result of the
malicious act, then such damages are included under loss resulting from the offense.
[Headnotes 1-3]
Penal statutes should be narrowly construed where they are ambiguous. See Buschauer v. State, 106 Nev.
890, 896, 804 P.2d 1046, 1049 (1990); Anderson v. State, 95 Nev. 625, 629, 600 P.2d 241, 243 (1979). The
phrase value of the property affected or the loss resulting from the offense is subject to more than one
reasonable interpretation and is therefore ambiguous. Thus NRS 206.310 and 193.155 must be narrowly
construed. The overall intent of these statutes is to make criminal penalties proportionate to the value of the
property affected. They should be interpreted to give meaning to that intent while adopting the narrower of two
reasonable definitions.
[Headnote 4]
Malicious destruction of private property, unlike theft, can result in two types of direct injury to the property,
total or partial destruction. The language in the statute refers to both types of destruction. The fair market value
of the property is the appropriate standard for determining the level of culpability when the property is
completely destroyed. When an item is totally destroyed it is as though it was stolen, and the Bryant rule should
apply. The degree of criminal liability should be determined by the fair market value of the property unless the
fair market value cannot be reasonably determined at which point alternate evidence of value may be offered
such as new replacement. See Cleveland v. State, 85 Nev. 635, 637, 461 P.2d 408, 409 (1969).
[Headnote 5]
However, when property is only partially destroyed, it falls within the loss resulting from the offense
category. Here the appropriate measure of damages is the cost related to repair or restore the property.
4
The
loss must be directly tied to the damage to the property, i.e., the offense. Ancillary consequences that may
accompany a crime in general, such as the need to provide increased security, cannot be included to meet the
statutory thresholds.
__________

4
In some cases, the loss may extend beyond the repair costs. For example, it may be impossible to repair the
property so that it matches the undamaged portions of the property, like the paint job on an automobile. In such
instances, restoration of the property to its previous condition may require painting the entire automobile, even
the undamaged portions. Where the State is claiming such damages, it must lay the foundation to show why such
additional costs are necessitated by the damage created by the actions of the defendant.
[Headnotes 6, 7]
Analyzing the evidence in this case, we conclude that the district court erred in allowing the State to admit
evidence regarding the cost to hire a security guard. We further conclude that the district court erred in allowing
evidence of the replacement value, as opposed to the fair market value, of some of the destroyed property, such
as the wall unit, without first establishing the need for a new unit rather than a used unit. Finally, the damaged
computer was counted twice, the salvage value of $950 (arguably the fair market value) and the cost to replace
the computer at another $950.
Without the questionable items, the value of the property destroyed or the loss resulting from the offense falls
below the $5,000 required for a felony conviction. However, there is overwhelming evidence that the value of
the property destroyed or repaired exceeds $250, the threshold for a gross misdemeanor conviction.
Accordingly, we reverse the judgment of conviction of felony malicious destruction of private property, and
remand this case to the district court for entry of a judgment of conviction of gross misdemeanor malicious
destruction of private property and for further proceedings consistent with this opinion.
____________
116 Nev. 349, 349 (2000) King v. State
DARREN MAURICE KING, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 33579
March 13, 2000 998 P.2d 1172
Appeal from a judgment of conviction, pursuant to a jury verdict, of two counts of trafficking in a controlled
substance, three counts of attempted murder with the use of a deadly weapon, and one count of discharging a
firearm at or into a structure. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Defendant was convicted in the district court of two counts of trafficking in a controlled substance, three
counts of attempted murder with the use of a deadly weapon, and one count of discharging a firearm at or into a
structure, and he appealed. The supreme court, Maupin, J., held that: (1) State's use of peremptory challenge to
exclude sole African-American venireperson from jury pool on ground of her youth and inexperience was not
mere pretext for race discrimination, (2) failure to conduct a Petrocelli hearing on record prior to admitting
police informant's testimony that he had previously acquired illegal drugs from defendant
approximately 25 to 30 times did not require reversal of convictions,
116 Nev. 349, 350 (2000) King v. State
testimony that he had previously acquired illegal drugs from defendant approximately 25 to 30 times did not
require reversal of convictions, (3) cautionary jury instruction regarding the credibility of an addict-informant
was not required, (4) misconduct by prosecutor in form of statements during closing argument in which
prosecutor vouched for credibility of law enforcement witnesses constituted harmless error, (5) night-time
execution of warrant to search defendant's residence was not unreasonable, and (6) use of shot gun during
execution of search warrant to penetrate iron gate or security door that was protecting front entrance of
defendant's residence was not unreasonable.
Affirmed.
Karen A. Connolly, Las Vegas, for Appellant.
The Equal Protection Clause forbids utilizing a peremptory challenge to exclude a juror on the basis of race. U.S. Const. amend.
14.
2. Jury.
A defendant claiming that a Batson violation has occurred must first demonstrate a prima facie case of racial discrimination in
connection with the State's use of peremptory challenges to exclude African-American venirepersons from the jury pool.
3. Jury.
Once a defendant claiming a Batson violation has made out a prima facie case of racial discrimination in connection with the
State's use of peremptory challenges to exclude African-American venirepersons from the jury pool, the burden shifts to the State to
express a race-neutral explanation for the challenge.
4. Jury.
Once the State, in response to a Batson claim and prima facie evidence of race discrimination, has offered a race-neutral
explanation for its use of peremptory challenges to exclude African-American venirepersons from the jury pool, the district court must
determine whether the explanation was a mere pretext and whether the defendant has successfully proved racial discrimination.
5. Jury.
State's use of peremptory challenge to exclude sole African-American venireperson from jury pool on ground of her youth and
inexperience was not mere pretext for race discrimination, and thus defendant's Batson claim would fail, where no other venireperson
was impaneled who displayed characteristics for which stricken venireperson was dismissed.
6. Criminal Law.
Failure to conduct a Petrocelli hearing on record prior to admitting police informant's testimony that he had
previously acquired illegal drugs from defendant approximately 25 to 30 times did not require reversal of
narcotics and attempted murder convictions,
116 Nev. 349, 351 (2000) King v. State
police informant's testimony that he had previously acquired illegal drugs from defendant approximately 25 to 30 times did not require
reversal of narcotics and attempted murder convictions, where informant's testimony was relevant to the identification of defendant and
lack of mistake, and defendant's convictions were supported by overwhelming evidence. NRS 48.045(2).
7. Criminal Law.
Failure to conduct a Petrocelli hearing on the record prior to admitting prior bad acts evidence is grounds for reversal on appeal
unless either the record is sufficient for the supreme court to determine that the evidence is admissible under the Tinch test for
admissibility of such evidence, or where the result would have been the same had the district court not admitted the evidence. NRS
48.045.
8. Criminal Law.
The Tinch factors for determining the admissibility of prior bad acts evidence include: (1) whether the evidence is relevant to the
crime charged, (2) whether the other act is proven by clear and convincing evidence, and (3) whether the probative value of the other
act is substantially outweighed by the danger of unfair prejudice. NRS 48.045.
9. Criminal Law.
Cautionary jury instruction regarding the credibility of an addict-informant was not required in prosecution for narcotics violations
and attempted murder where informant who made controlled purchase of drugs from defendant on behalf of police not known to be or
deemed unreliable, events surrounding defendant's arrest demonstrated reliability of information generated from informant, and jury
was instructed on relevance of felony convictions sustained by witnesses and inducements offered in connection with certain testimony
to events surrounding resolution of credibility issues.
10. Criminal Law.
Prosecutor's statements during closing argument, in which prosecutor vouched for credibility of law enforcement witnesses by
asking jury whether entire police force was involved in conspiracy against defendant, constituted misconduct in prosecution for
narcotics violations and attempted murder.
11. Criminal Law.
Misconduct by prosecutor in prosecution for narcotics violations and attempted murder, in form of statements during closing
argument in which prosecutor vouched for credibility of law enforcement witnesses, constituted harmless error, where evidence of
defendant's guilt was overwhelming.
12. Criminal Law.
A criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or
conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the
trial.
13. Criminal Law.
If the issue of guilt or innocence is close, and if the State's case is not strong, prosecutorial misconduct will probably be considered
prejudicial; however, where evidence of guilt is overwhelming, even aggravated prosecutorial misconduct may constitute harmless
error.
Night-time execution of warrant to search defendant's residence was not unreasonable, where district court issuing warrant
directed that it could be executed at any time of day or night,
116 Nev. 349, 352 (2000) King v. State
could be executed at any time of day or night, and affidavit in support of warrant and testimony below indicated that five people,
within ten minutes, entered and left defendant's residence for purpose of purchasing drugs.
Absent an abuse of discretion, a magistrate's finding of a reasonable necessity for night-time service of a search warrant should not
be disturbed.
Use of shot gun during execution of search warrant to penetrate iron gate or security door that was protecting front entrance of
defendant's residence was not unreasonable, where residence was secured with bars on windows and iron gate or security door which
made residence extremely difficult to penetrate.
Execution of warrant to search defendant's residence did not violate knock and announce statute, where police officers executing
warrant shouted something to effect of police officer and search warrant, prior to penetrating premises, and officers heard shots
fired inside residence immediately after announcing themselves. NRS 179.055.
18. Criminal Law.
Even assuming that State's failure to disclose to grand jury allegedly exculpatory testimony of witnesses that police failed to knock
and announce their presence prior to entering defendant's residence to execute search warrant was error, such error was harmless where
evidence supporting defendant's convictions for attempted murder was overwhelming. NRS 172.145(2).
19. Grand Jury.
A prosecutor is required to disclose to the grand jury all exculpatory evidence.
20. Grand Jury.
Exculpatory evidence is defined as evidence that will explain away the charge, and prosecutor is required to disclose all such
evidence to grand jury.
OPINION
FACTS
This matter arises from a successful undercover drug enforcement operation and interdiction. Utilizing
an informant, police effected a controlled buy or purchase of illegal drugs at an apartment in which
appellant, Darren Maurice King, was residing. Based on the successful completion of the drug purchase,
police obtained a search warrant for the same residence. While executing the search warrant later that
evening a gun battle ensued.
116 Nev. 349, 353 (2000) King v. State
ensued. Once the gunfire subsided, police entered the residence and arrested King.
King was tried in district court before a jury and convicted of two counts of trafficking in a controlled
substance, three counts of attempted murder with the use of a deadly weapon, and one count of discharging a
firearm at or into a structure. King appeals from the judgments entered upon these convictions.
King raises several issues on appeal, none of which warrant reversal: (1) whether the State's peremptory
challenge of the sole African-American venireperson violated the Equal Protection Clause of the Fourteenth
Amendment of the United States Constitution; (2) whether the district court improperly admitted prior bad act
evidence; (3) whether the district court erroneously failed to give a cautionary jury instruction regarding the
credibility of an addict-informant; (4) whether the prosecutor improperly vouched for the credibility of a
witness; (5) whether a search warrant was executed in such a dangerous manner as to render the search
unreasonable under the Fourth Amendment to the United States Constitution; and (6) whether the district court
erroneously denied King's motion to dismiss, which was premised on the State's failure to present allegedly
exculpatory evidence to the grand jury.
1

DISCUSSION
1. King asserts that the district court erred by permitting the State to use its fifth peremptory challenge to
strike the only African-American venireperson in the jury pool.
[Headnotes 1-4]
In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court held that the Equal Protection
Clause of the United States Constitution forbids utilizing a peremptory challenge to exclude a juror on the basis
of race. In Purkett v. Elem, 514 U.S. 765, 767 (1995), the Court outlined the steps required for a Batson
challenge. First, the opponent of a peremptory challenge must demonstrate a prima facie case of racial
discrimination. Second, the burden shifts to the proponent of the challenge to express a race-neutral explanation
for the challenge. Third, the district court must determine whether the explanation was a mere pretext and
whether the opponent successfully proved racial discrimination. If these issues are resolved in favor of the
proponent, the constitutional attack on the peremptory challenge is rejected. See Hernandez v. New York, 500
U.S. 352, 359 (1991).
__________

1
King raised several other issues on appeal given consideration by this court, all of which were found to be
without merit.
116 Nev. 349, 354 (2000) King v. State
[Headnote 5]
Here, the State opposed the Batson objection to the peremptory challenge by representing that the
prospective juror in question was stricken because of her youth and inexperience. The reasons given by the State
were race neutral and properly considered by the district court. Accordingly, we must consider whether the
race-neutral explanation was merely a pretext for racial discrimination.
A review of the jury selection transcript demonstrates that no other venireperson was impaneled who
displayed the characteristics for which the stricken venireperson was dismissed. See Turner v. Marshall, 121
F.3d 1248 (9th Cir. 1997). We therefore conclude that King has failed to demonstrate on appeal that a
Fourteenth Amendment Equal Protection violation occurred based on the peremptory challenge of the sole
African-American venireperson.
[Headnote 6]
2. King next contends that the admission of prior bad act testimony constitutes reversible error. We disagree.
During King's trial, the informant who participated in the controlled contraband purchase testified that he had
previously acquired illegal drugs from King approximately twenty-five to thirty times. This information was set
forth in the application and affidavit utilized to obtain the search warrant. The State also referred to this evidence
in its closing argument.
King submits that this testimony was improperly admitted contrary to NRS 48.045, which provides that
evidence of a person's character may not be admitted for the purpose of proving that the person acted in
conformity therewith on a particular occasion. King also argues that the failure to conduct a hearing prior to the
admission of the testimony pursuant to Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), constitutes
reversible error.
[Headnotes 7, 8]
Failure to conduct a Petrocelli hearing on the record is grounds for reversal on appeal unless either the
record is sufficient for this court to determine that the evidence is admissible under the test for admissibility of
bad act evidence as set forth in Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997),
2
or
where the result would have been the same had the district court not admitted the evidence. Qualls v. State, 114
Nev. 900, 902, 961 P.2d 765, 766-67 (1998).
__________

2
The Tinch factors include a determination of (1) whether the evidence is relevant to the crime charged; (2)
whether the other act is proven by clear and convincing evidence; and (3) whether the probative value of the
other act is substantially outweighed by the danger of unfair prejudice. See Tinch, 113 Nev. at 1176, 946 P.2d at
1064-65.
116 Nev. 349, 355 (2000) King v. State
We conclude that the district court's failure to conduct a Petrocelli hearing prior to admission of the prior
drug transactions involving King does not give rise to reversible error. The evidence in question was relevant to
the identification of King and lack of mistake pursuant to NRS 48.045(2).
3
Further, the record is sufficient for
this court to determine that the remaining Tinch factors for admissibility have been met. Finally, in the
alternative, we conclude that the result would have been the same had the district court not admitted the
testimony because King's guilt is supported by overwhelming evidence.
4

[Headnote 9]
3. King also contends that the district court erred in failing to give a cautionary jury instruction regarding the
credibility of an addict-informant. In support of this contention, King relies on Champion v. State, 87 Nev. 542,
490 P.2d 1056 (1971).
In Champion, the State conceded that a proper cautionary instruction concerning an addict-informer's
testimony was central to the case. Champion, 87 Nev. at 544, 490 P.2d at 1057. The finding was based on the
State's admissions that the utilized addict-informer was about as unreliable an addict-informer as you can have,
and that the addict-informer's unreliability was commonly known. Id. In Champion, the State further conceded
that, aside from the addict-informer's testimony, there was nothing to show that the [drugs] were turned over to
[the addict-informer] and received from [the defendant]. Id. at 543-44, 490 P.2d at 1056.
Champion is distinguishable because the informant in this matter was not known to be or deemed unreliable.
First, a Las Vegas Metropolitan Police Department detective testified that he did not know the informant until
just prior to the events at issue. Second, the informant was proved reliable during the prior controlled
acquisitions of contraband. Third, the events surrounding the arrest clearly demonstrated the reliability of
information generated from the informant. Thus, there was substantial evidence against King to corroborate the
informant's testimony. Additionally, the jury was instructed on the relevance of felony convictions
sustained by witnesses and inducements offered in connection with certain testimony to
the resolution of credibility issues.
__________

3
NRS 48.045(2) provides:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to
show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.

4
King was found within the immediate proximity of various narcotics paraphernalia, substantial amounts of
cocaine, and within reach of a weapon that could not be excluded as having fired projectiles recovered from the
crime scene. There was also testimony that King was responsible for shooting at the officers. Finally, the
informant identified King as his supplier.
116 Nev. 349, 356 (2000) King v. State
jury was instructed on the relevance of felony convictions sustained by witnesses and inducements offered in
connection with certain testimony to the resolution of credibility issues. See Doleman v. State, 107 Nev. 409,
415, 812 P.2d 1287, 1290 (1991).
[Headnotes 10, 11]
4. King asserts that the State improperly vouched for the credibility of certain witnesses as follows:
Ladies and gentlemen, I suspect if you want to consider the defense's argument, then this whole case
is a lie and Mr. Lalli and I stand right here now and we present to you a lie. We are involved in it as well.
We came in here, we presented all the evidence that was presented to us all the way down from
Sheriff Keller himself.
The whole police force is involved in a lie in a big conspiracy to go after this man right here? The
whole police force wants to bring something to light that they are so dirty they want this man right here
that they are willing to create such an elaborate, as she says, story? Big story that we write an ending to?
If you want to believe that, then believe it. And find him not guilty because the whole police force is
dirty and they are terrible and every time you want to get a dangerous drug dealer off the street the police
force is involved in it. . . .
But ladies and gentlemen, I don't mean to. I hope I didn't offend the jury. I get a little upset about the
fact that our police officers are being put up here and then toldjurors are told that they are liars. That's
basically what happened here.
[Headnotes 12, 13]
A criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone,
for the statements or conduct must be viewed in context; only by so doing can it be determined whether the
prosecutor's conduct affected the fairness of the trial. See United States v. Young, 470 U.S. 1, 11 (1985). If the
issue of guilt or innocence is close, and if the State's case is not strong, prosecutorial misconduct will probably
be considered prejudicial. See Garner v. State, 78 Nev. 366, 374, 374 P.2d 525, 530 (1962). However, where
evidence of guilt is overwhelming, even aggravated prosecutorial misconduct may constitute harmless error. See
Jones v. State, 113 Nev. 454, 467, 937 P.2d 55, 64 (1997).
We conclude that the comments made by the State were, at least in part, improper.
116 Nev. 349, 357 (2000) King v. State
in part, improper. However, any error was harmless in light of the overwhelming evidence of King's guilt.
5

[Headnote 14]
5. King asserts that night-time execution of the search warrant and the use of a shotgun
6
to blow open a
locked iron gate securing King's residence offended constitutional standards of reasonableness, thus vitiating the
legality of the accompanying search. King also alleges that officers failed to knock and announce their presence
prior to executing the search warrant in violation of NRS 179.055 (providing that an officer may break into a
house to execute a warrant if refused admittance after notice of his authority and purpose).
[Headnote 15]
We conclude that the search warrant was not executed in an unreasonable manner. In Sanchez v. State, 103
Nev. 166, 169, 734 P.2d 726, 728 (1987), this court held that [a]bsent an abuse of discretion, a magistrate's
finding of a reasonable necessity for night-time service should not be disturbed. This is based on the premise
that controlled substances may dissipate through nighttime sales and an informant's purchase money could be
spent prior to the execution of a warrant. Id.
The search warrant in this case provides, You are hereby commanded to search forthwith said premises for
said property, serving this warrant at any hour of the day or night . . . . (Emphasis added.) The affidavit in
support of the search warrant and testimony below indicated that five people, within ten minutes, entered and left
King's apartment for the purpose of purchasing drugs. Thus, we conclude that the district court did not abuse its
discretion by directing the warrant to be executed at any time of the day or night. Accordingly, the timing of the
execution of the search warrant in this case was not unreasonable.
[Headnote 16]
Officers also testified that the residence was secured with bars on the windows and an iron gate or security
door, which made the residence difficult to penetrate. Due to the structural fortification of the residence, as well
as information that persons within it were armed and dangerous, the use of a shotgun to penetrate the iron gate or
security door that was protecting the front entrance of the residence was not unreasonable.
7

__________

5
See note 4.

6
The shotgun in question is also known as a shot lock or a street sweeper. This device is actually a
modified shotgun designed to penetrate locks and force them open.

7
To support the proposition that the use of the street sweeper is unreasonable, King cites Langford v.
Superior Court, 729 P.2d 822 (Cal. 1987).
116 Nev. 349, 358 (2000) King v. State
[Headnote 17]
We further conclude that the Nevada knock and announce statute, NRS 179.055,
8
was not violated.
Several of the officers at the scene testified that they announced their presence by yelling something to the effect
of Police officer. Search warrant, prior to penetrating the premises. Immediately thereafter, shots were fired
from the interior of the residence. We therefore hold that, under the circumstances of this case, the officers
substantially complied with NRS 179.055 and properly entered the apartment under exigent circumstances to
execute the warrant. See United States v. Fox, 790 F. Supp. 1487 (D. Nev. 1992) (holding that non-compliance
with NRS 179.055 was justified where compliance with statute would have placed officers in great physical
peril).
[Headnote 18]
6. King contends that the State failed to present exculpatory evidence to the grand jury contrary to NRS
172.145.
9
More specifically, King contends that the State failed to present statements of four persons who were
inside the residence at the time the search warrant was executed. These statements purportedly indicated that the
police failed to knock and announce their presence prior to entry. King asserts that he would not be guilty of
attempted murder if it was established that he had been in reasonable fear for his life due to the police officers'
failure to knock and announce their presence.
__________
However, in Langford, officers penetrated a suspected crack house utilizing a motorized battering ram that was
determined to be unreasonably dangerous based on its potential ability to collapse building walls and ceilings,
rupture utility lines, cause fire through the damage of electrical wires or gas lines, and threaten the safety of not
only occupants of a dwelling, but an entire neighborhood. No such dangers have been alleged through the use of
the street sweeper in this case, which was evidently used to penetrate the lock with minimal risk to dwelling
occupants.

8
NRS 179.055 provides, in part:
1. The officer may break open any outer or inner door or window of a house, or any part of the
house, or anything therein, to execute the warrant, if, after notice of his authority and purpose, he is
refused admittance.
. . . .
3. All reasonable and necessary force may be used to effect an entry into any building or property or
part thereof to execute a search warrant. In the execution of the warrant, the person executing it may
reasonably detain and search any person in the place at the time in order to protect himself from attack or
to prevent destruction, disposal or concealment of any instruments, articles or things particularly
described in the warrant.

9
NRS 172.145(2) provides that [i]f the district attorney is aware of any evidence which will explain away
the charge, he shall submit it to the grand jury.
116 Nev. 349, 359 (2000) King v. State
[Headnotes 19, 20]
Nevada law requires a prosecutor to disclose to the grand jury all exculpatory evidence. See Lay v. State, 110
Nev. 1189, 1197, 886 P.2d 448, 453 (1994). Exculpatory evidence is defined as evidence that will explain away
the charge. Id.
Assuming that the provisions of NRS 172.145(2) were violated by the State's failure to present the testimony
of the four individuals to the grand jury, in light of the overwhelming evidence against King, we conclude that
violation does not compel reversal.
10
See NRS 178.598; Chapman v. California, 386 U.S. 18, 24 (1967).
Having reviewed all other issues raised in this appeal and finding them to be without merit, we hereby affirm
the judgment below.
____________
116 Nev. 359, 359 (2000) Gaines v. State
MELVIN TAYLOR GAINES, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 33681
March 13, 2000 998 P.2d 166
Appeal from a judgment of conviction, pursuant to a guilty plea of two counts of burglary and one count of
forgery. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski, Judge.
Defendant pleaded guilty in the district court to two counts of burglary and one count of forgery, and he
appealed. The supreme court held that: (1) defendant was not entitled to credit against sentences he received for
two subsequent felonies, committed while he was on probation for first felony offense, for time served while he
was being held for probation violation; and (2) statute requiring genetic marker testing for certain enumerated
offenders is not unconstitutional.
Affirmed.
Morgan D. Harris, Public Defender, and Sharon G. Dickinson, Deputy Public Defender, Clark County, for
Appellant.
Tufteland and Brian S. Rutledge, Chief Deputy District Attorneys, Clark County, for
Respondent.
__________

10
King was clearly allowed to present that evidence for consideration by the jury at trial.
Rutledge, Chief Deputy District Attorneys, Clark County, for Respondent.
JoNell Thomas, Las Vegas, for Amicus Curiae The American Civil Liberties Union of Nevada and the
Nevada Attorneys for Criminal Justice.
1. Criminal Law.
The supreme court will not disturb a district court's determination of sentencing absent an abuse of discretion.
2. Criminal Law.
With respect to plea agreements, the State must be held to the most meticulous standards of both promise and performance, and
violation of the terms or the spirit of a plea agreement mandates reversal.
3. Criminal Law.
Defendant was not entitled to credit against sentences he received for two subsequent felonies, committed while he was on
probation for first felony offense, for time served while he was being held for probation violation with respect to first felony offense.
NRS 176.055.
4. Statutes.
It is a well-recognized tenet of statutory construction that multiple legislative provisions be construed as a whole, and where
possible, a statute should be read to give plain meaning to all of its parts.
5. Statutes.
Specific statutes take precedence over general statutes.
The involuntary collection of a blood sample from an offender constitutes a warrantless search and seizure for purposes of the
Fourth Amendment that is not based on individualized suspicion of wrongdoing. U.S. Const. amend. 4.
The special needs exception to the Fourth Amendment warrant requirement mandates a showing that: (1) the search was
reasonable, and (2) that a warrant would be impracticable and would frustrate the government's interest in a special need beyond
normal law enforcement. U.S. Const. amend. 4.
Statute requiring genetic marker testing for certain enumerated offenders does not violate Fourth Amendment prohibition against
unreasonable searches and seizures. Government's legitimate interest in creating genetic marker database to solve future crimes
outweighs convicted criminal's reasonable expectation of privacy, particularly in light of minimally intrusive nature of blood draw for
genetic test. U.S. Const. amend. 4; NRS 176.0913.
A convicted person loses some rights to personal privacy that would otherwise be protected under the Fourth Amendment, such as
his interest in his genetic identity as determined by DNA testing, even when the State's interest does not concern administration of
penal or detention facilities. U.S. Const. amend. 4.
The equal protection clause of the Fourteenth Amendment mandates that all persons similarly situated receive like treatment under
the law. U.S. Const. amend. 14.
An equal protection analysis first requires that the appropriate standard of judicial scrutiny be identified, and then that the
statutory classification be considered under that appropriate level of scrutiny. U.S. Const. amend. 14.
The strict scrutiny standard is applied to equal protection claims involving fundamental rights, such as privacy, marriage, or cases
involving a suspect class. U.S. Const. amend. 14.
Under the strict scrutiny standard, statutory classifications should be sustained in the face of an equal protection claim only if the
legislation is narrowly tailored and necessary to advance a compelling state interest. U.S. Const. amend. 14.
A lesser standard for reviewing equal protection challenges to statutory classifications applies where the classification does not
affect fundamental liberties. U.S. Const. amend. 14.
Under the rational basis standard of review for equal protection claims, the legislation at issue will be upheld provided the
challenged classification is rationally related to a legitimate governmental interest. U.S. Const. amend. 14.
The rational basis level of scrutiny is applicable to equal protection claims arising out of statutorily mandated genetic marker
testing for persons convicted of enumerated offenses, as a convicted person has no fundamental right to be free from DNA genetic
marker testing. U.S. Const. amend. 14; NRS 176.0913.
17. Constitutional Law; Searches and Seizures.
Statute requiring the genetic marker testing of individuals convicted of specific enumerated offenses was rationally related to
legitimate governmental interest in apprehension of repeat and violent offenders, and thus did not violate Fourteenth Amendment's
Equal Protection Clause. U.S. Const. amend. 14; NRS 176.0913.
Statute requiring the genetic marker testing of individuals convicted of specific enumerated offenses was rationally related to
legitimate governmental interest in apprehension of repeat and violent offenders, and thus did not violate defendant's substantive due
process rights. U.S. Const. amends. 5, 14; NRS 176.0913.
19. Criminal Law.
The Eighth Amendment prohibits barbarous physical punishment and the unnecessary and wanton infliction of pain without
justification. U.S. Const. amend. 8.
20. Criminal Law; Searches and Seizures.
Statute requiring genetic marker testing for certain enumerated offenders does not violate Eighth Amendment prohibition against
cruel and unusual punishment. Blood draw to secure material for test is neither barbarous nor involves wanton physical punishment.
Statute requiring genetic marker testing for certain enumerated offenders, by its plain language, limits purpose of testing to
identification,
tion, and thus statute is not unconstitutionally overbroad, even though statute does not explicitly limit amount of blood that may be
drawn or time period for keeping test results, and does not require that State dispose of remaining portions of blood not used in DNA
testing. NRS 176.0913.
OPINION
Per Curiam:
SUMMARY
This case presents a significant issue of first impressionwhether NRS 176.0913, a statute that
authorizes DNA testing for certain enumerated criminal offenses, is constitutional. Additionally, this matter
addresses whether the district court erred in refusing to credit appellant, Melvin Taylor Gaines (Gaines),
for time served in custody on the various sentences imposed in the district court. For the reasons discussed
herein, we conclude that NRS 176.0913 is constitutional and that the district court did not err with regard to
Gaines' sentences.
STATEMENT OF FACTS
Gaines faced felony criminal charges arising from three separate incidents. On April 7, 1998, Gaines
pleaded guilty to the unlawful use of coins in a gaming machine, a felony, and was sentenced to twelve to
forty-eight months (case A). The district court suspended this sentence and placed Gaines on probation for
a term not to exceed four years.
Several months later, while still on probation in connection with case A, Gaines was arrested for burglary
and forgery arising from a failed attempt to cash three fake $100.00 Visa traveler's checks at a Las Vegas
casino (case B). Gaines' probation in connection with case A was eventually revoked because of this arrest.
While awaiting his probation revocation hearing on case A, Gaines was rebooked on a separate burglary
charge stemming from a June 22, 1998, check forgery at a Las Vegas bank (case C).
Gaines ultimately entered negotiated guilty pleas to one count of burglary and one count of forgery in
case B, and one count of burglary in case C. Defense counsel discussed the terms of the agreement leading to
these pleas of guilty during Gaines' unconditional waiver of preliminary hearing:
Another issue is the credit for time served. It's discretionary as to whether or not he will get credit in
these new cases or all go to this probation case. State has agreed to not oppose credit in all the cases for
the time period that he has been booked on each case, which means that . . . .
Which means that he will be getting this time now in his probation revocation hearing and in every
other case.
(Emphasis added.) Gaines' plea agreement, however, stated in relevant part, that
[t]he State has agreed to retain the right to argue at rendition of sentence, but will not oppose concurrent
time between the burglary counts. The State will not oppose all discretionary time being given to
defendant on all counts.
Although the terms discussed at the waiver of preliminary hearing were in conflict with the actual written plea
agreement, no attempt was made at the arraignment to remand the matter for preliminary hearing. Thus, Gaines
proceeded with the plea negotiations as per the written agreement.
Gaines was sentenced on December 22, 1998. With respect to case B, the district court imposed a sentence
of seventy-two months with parole eligibility in fourteen months in connection with the burglary conviction, and
thirty-four months with parole eligibility in twelve months in connection with the forgery conviction. With
respect to case C, Gaines was sentenced to seventy months with parole eligibility in sixteen months. As of the
date of sentencing, Gaines had been in custody since August 19, 1998a total of 217 days. The sentences in
cases B and C were imposed concurrently with the sentence imposed in case A, pursuant to which Gaines had
been required to serve his original sentence of forty-eight months with parole eligibility in twelve months. The
district court awarded 217 days credit for time served in case A, but gave no credit in connection with cases B
and C. After the State objected to Gaines' request for credit on all three cases, the following colloquy occurred:
[Gaines' Counsel]: The State is having no objection
The Court: I don't think those were the negotiations because I can't do that [credit each case for time
served].
[The State]: You can't multiply the credit and apply it to each case. We have no opposition to the
discretionary time.
Additionally, the district court required Gaines to undergo DNA genetic marker testing. Believing that the
district court erred in sentencing and that the genetic marker testing was unconstitutional, Gaines filed this timely
appeal.
DISCUSSION
I. Credit for time served
[Headnotes 1-3]
This court will not disturb a district court's determination of sentencing absent an abuse of discretion. See
Martinez v. State, 114 Nev. 735, 737-38, 961 P.2d 143, 145 (1998). In the instant matter, Gaines contends that
the district court abused its discretion in not applying credit in cases B and C for the time that Gaines served in
custody while being held for his probation violation in case A.
1
We disagree because the district court was
prohibited under NRS 176.055 and the terms of the plea agreement from applying credit in cases B and C.
NRS 176.055 provides, in relevant part:
2. A defendant who is convicted of a subsequent offense which was committed while he was:
. . . .
(b) Imprisoned in a county jail or state prison or on probation or parole from a Nevada conviction is
not eligible for any credit on the sentence for the subsequent offense for the time he has spent in
confinement which is within the period of the prior sentence, regardless of whether any probation or
parole has been formally revoked.
(Emphasis added.) The plain and unequivocal language of NRS 176.055(2)(b) prohibits a district court from
crediting a parolee or probationer for time served on a subsequent offense if such offense was committed while
on probation or parole.
__________

1
In a related argument, Gaines contends that the State breached the plea negotiations when it opposed
discretionary time in all of his cases. We disagree that the State breached its plea agreement with Gaines.
With respect to plea agreements, this court has concluded that the State must be held to the most meticulous
standards of both promise and performance' and that violation of the terms or the spirit of a plea agreement
mandates reversal. Citti v. State, 107 Nev. 89, 91, 807 P.2d 724, 726 (1991) (quoting Van Buskirk v. State, 102
Nev. 241, 243, 720 P.2d 1215, 1216 (1986)).
Although Gaines argues that the State implicitly agreed not to oppose credit for time Gaines served in cases
A-C at his waiver of preliminary hearing, Gaines' written guilty plea agreement provided only that the State will
not oppose all discretionary time being given to defendant on all counts. We conclude that the State met this
obligation under the plea agreement because it did not oppose any discretionary time. Although the State
objected to credit for time served on cases B and C, this did not violate Gaines' plea agreement because such
credit was not discretionary. Rather, the credit was prohibited by statute. See NRS 176.055. Further, Gaines'
remedy would have been to abandon the negotiations at his arraignment in district court in light of the conflict in
understandings and seek a remand to the justice court for renewed preliminary hearing proceedings.
Although Gaines does not dispute the plain meaning of NRS 176.055(2)(b), he argues that the district court
erred in applying this statutory mandate because NRS 176.055 is ambiguous since it conflicts with NRS
176.035. We conclude that this argument lacks merit, as we see no conflict between these statutes.
NRS 176.035(2) provides, in relevant part:
If the person is a probationer at the time the subsequent felony is committed, the court may provide that
the latter term of imprisonment run concurrently with any prior terms or portions thereof.
This statute simply authorizes the district court to impose concurrent sentences in instances where a probationer
commits a subsequent felony. We cannot agree with Gaines' analysis that NRS 176.035 and 176.055 are in
conflict.
[Headnotes 4, 5]
It is a well-recognized tenet of statutory construction that multiple legislative provisions be construed as a
whole, and where possible, a statute should be read to give plain meaning to all of its parts. See Building &
Constr. Trades v. Public Works, 108 Nev. 605, 610, 836 P.2d 633, 636 (1992). It is also well recognized that
specific statutes take precedence over general statutes. See SIIS v. Surman, 103 Nev. 366, 368, 741 P.2d 1357,
1359 (1987).
In reading NRS chapter 176 as a whole, we have no trouble reconciling the two statutes at issue. NRS
176.035 merely authorizes the district court to run sentences concurrently; it does not require that these
concurrent sentences be identical with respect to time served. Assuming arguendo that there is a conflict, we
conclude that NRS 176.055 is controlling in this matter because it is more specific than NRS 176.035, as it deals
with the factual circumstances concerning credit for time served.
Gaines further argues that he is entitled to credit for time served on cases B and C under our holding in
Kuykendall v. State, 112 Nev. 1285, 926 P.2d 781 (1996). We do not construe our holding in Kuykendall as a
license to ignore the clear and unambiguous statutory mandate set forth in NRS 176.055.
In Kuykendall, we held that NRS 176.055 should be read broadly to provide credit for confinement in
instances where a defendant is financially unable to post bail. Id. at 1286, 926 P.2d at 782. Further, in
Kuykendall, we noted that the purpose of NRS 176.055 was to ensure that a defendant was credited with all time
served, in part, to prevent an equal protection violationinvidious discrimination based on a defendant's
financial status. Id. at 1286-87, 926 P.2d at 782-83. However, in so doing, we neither commented on NRS
176.035 nor intended to alter the unequivocal prohibition of incarceration credit set forth in NRS
176.055{2){b).
cal prohibition of incarceration credit set forth in NRS 176.055(2)(b).
Accordingly, we conclude that the district court did not err in the imposition of these sentences.
II. NRS 176.0913
Preliminarily, Gaines argues that NRS 176.0913, a statute requiring genetic marker testing for certain
enumerated offenders, does not apply to him because the legislature only intended it to apply to sexual
offenders.
2
We conclude that this contention lacks merit for a number of reasons.
First, the plain language of NRS 176.0913 unambiguously requires genetic marker testing for several types
of non-sexual offenders. Subsection 4 of this statute lists numerous non-sexual offenses for which genetic
marker testing is required including: murder, mayhem, administration of poison, battery, elder abuse or
neglect, home invasion, burglary, the offense at issue in this case, and others.
Second, assuming there is any ambiguity in this language, the legislative history indicates that S.B. 325,
codified as NRS 176.0913, is a manifestation of the 1997 legislature's intent to, at least in part, expand the
enumerated crimes for which DNA sampling and testing are to be required. Written materials submitted to the
Senate Finance Committee in connection with S.B. 325 state unequivocally that
[s]ubsection 4 expands the list of crimes for which genetic testing is required to include certain violent
crimes such as murder, manslaughter, mayhem, battery with the intent to commit a
crime, elder abuse, stalking, burglary, and invasion of the home.
__________

2
Gaines also argues NRS 176.0913 is ambiguous because subsections 4(b) and 4(j) conflict since 4(b)
references a statute that defines the term sexual offense, in part to include a hearing requirement, whereas
subsection 4(j) includes no such hearing requirement. See NRS 179D.410(17) (defining a sexual offense as An
offense that is determined to be sexually motivated pursuant to NRS 175.547 or NRS 207.193 [statutes
mandating hearings]). We see no inherent ambiguity between these subsections. The hearing referenced
indirectly in subsection 4(b) is only held to ascertain whether an offense is sexually motivatednot to determine
whether DNA genetic marker testing is required. See NRS 175.547 and NRS 207.193. Accordingly, because
there is no hearing requirement prior to genetic marker testing for both subsection 4(b) and 4(j), there is no
conflict.
Further, Gaines contends that the statute is ambiguous because NRS 179A.075, which defines the duties of the
central depository, only authorizes the depository to collect genetic marker information from those convicted of
sexual offenses. We conclude that this argument lacks merit. Although NRS 179A.075(3) was not broadened to
authorize both the criminal justice agencies and the central depository to collect and submit genetic marker
information from those convicted of non-sexual offenses, such authority was provided for in subsection 1 of
NRS 176.0913. See NRS 176.0913(1)(a) (requiring that information identifying the defendant be submitted to
the central repository for Nevada records of criminal history).
murder, manslaughter, mayhem, battery with the intent to commit a crime, elder abuse, stalking, burglary,
and invasion of the home.
Hearing on S.B. 325 Before the Senate Finance Comm., 69th Leg., Ex. D, p. 18-19 (Nev., June 13, 1997).
Third, the preamble of S.B. 325 states that it was intended, in part, to expand the provisions relating to
genetic marker testing of certain offenders. 1997 Nev. Stat., ch. 451, preamble, at 1644.
Gaines launches numerous constitutional attacks on NRS 176.0913, including claims that the statute is
overbroad and that it violates his right to be free from unreasonable search and seizure, right to equal protection,
right to due process, and right to be free from cruel and unusual punishment. Although we will address each
constitutional argument in turn, we note preliminarily that all fifty states have enacted genetic marker testing
statutes, and that appellate courts considering the constitutionality of these statutes have uniformly upheld them.
See Landry v. Attorney General, 709 N.E.2d 1085, 1090 (Mass. 1999); see, e.g., Roe v. Marcotte, 193 F.3d 72,
79 (2d Cir. 1999); Boling v. Romer, 101 F.3d 1336, 1340 (10th Cir. 1996); Rise v. Oregon, 59 F.3d 1556, 1562
(9th Cir. 1995); Jones v. Murray, 962 F.2d 302, 308 (4th Cir. 1992); Vanderlinden v. Kansas, 874 F. Supp.
1210, 1215 (D. Kan. 1995); Kruger v. Erickson, 875 F. Supp. 583, 588-89 (D. Minn. 1995); Ryncarz v.
Eikenberry, 824 F. Supp. 1493 (E.D. Wash. 1993); In the Matter of Maricopa County Juvenile Auth., 930 P.2d
496, 501 (Ariz. Ct. App. 1997); People v. Wealer, 636 N.E.2d 1129, 1137 (Ill. App. Ct. 1994); Cooper v.
Gammon, 943 S.W.2d 699, 705 (Mo. Ct. App. 1997); In the Matter of Marcus Orozco, 878 P.2d 432, 435-36
(Or. Ct. App. 1994); State v. Olivas, 856 P.2d 1076, 1086 (Wash. 1993).
Some genetic marker testing statutes are narrower than the Nevada provisions. Others are broader. For
example, the Colorado provision applies only to sex offenders and the Virginia statute applies to all convicted
felons. See Boling, 101 F.3d at 1340, and Jones, 962 F.2d at 308, respectively. Nationwide, appellate review of
genetic marker provisions has focused primarily on whether such testing was unconstitutional as an unreasonable
search and seizure in violation of the Fourth Amendment of the United States Constitution.
A. Fourth Amendment
[Headnote 6]
It is undisputed that the involuntary collection of a blood sample from an offender constitutes a warrantless
search and seizure for purposes of the Fourth Amendment that is not based on individualized suspicion
of wrongdoing.
on individualized suspicion of wrongdoing. See Landry, 709 N.E.2d at 1090; see also Bolin v. State, 114 Nev.
503, 523, 960 P.2d 784, 798 (1998) (intruding into the human body for the purpose of taking a blood sample
constituted searches within the ambit of the Fourth Amendment and were thus subject to stringent probable
cause requirements). Given this fact, the issue then becomes whether this warrantless search is unreasonable,
thereby violative of the Fourth Amendment. See Landry, 709 N.E.2d at 1093.
[Headnote 7]
Courts that have considered this issue have taken two differing approaches in their Fourth Amendment
analysis. First, some courts have applied a balancing approach weighing both the convict's expectation of
privacy and the minimally intrusive nature of a blood draw against the government's interest in creating a genetic
marker database to solve future crimes. See Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992); Rise v. Oregon,
59 F.3d 1556, 1560 (9th Cir. 1995). Second, other courts have determined that genetic marker testing falls
within the special needs doctrine that allows searches and seizures without a warrant and without
individualized suspicion.
3
See State v. Olivas, 856 P.2d 1076, 1086 (Wash. 1999); Roe v. Marcotte, 193 F.3d
72, 79 (2d Cir. 1999).
[Headnote 8]
Because we deem the reasoning in the balancing approach more persuasive, we hold that NRS 176.0913
does not violate the Fourth Amendment because the State's interest in solving crimes outweighs both the
convict's diminished expectation of privacy and the minimally intrusive nature of the blood draw.
[Headnote 9]
With respect to the balancing approach, the first consideration to be balanced against the State's interest in
the search and seizure at issue is the individual's expectation of privacy.
__________

3
The special needs exception to the Fourth Amendment warrant requirement mandates a showing that: (1)
the search was reasonable; and (2) that a warrant would be impracticable and would frustrate the government's
interest in a special need beyond normal law enforcement. See Olivas, 856 P.2d at 1084. With regard to prong
one, courts have concluded that a blood draw was reasonable in certain contexts based on prior Supreme Court
precedent discussing the minimal intrusiveness of the blood draw. See id. (citing Skinner v. Railway Labor
Executives' Ass'n, 489 U.S. 602, 620-24 (1989), and National Treasury Employees Union v. Von Raab, 489
U.S. 656, 665-72 (1989)); cf. Roe, 193 F.3d at 76-77. With regard to prong two, these courts have concluded
that genetic marker testing was a special need beyond law enforcement because the creation of a genetic marker
data bank would provide a strong deterrent against recidivist acts, and therefore its purpose was not for normal
law enforcement. See Olivas, 856 P.2d at 1085; Roe, 193 F.3d at 79.
at issue is the individual's expectation of privacy. Many jurisdictions have recognized that a convicted person
loses some rights to personal privacy that would otherwise be protected under the Fourth Amendment:
Once a person is convicted of one of the felonies [enumerated in a genetic marker testing statute] his
identity has become a matter of state interest and he has lost any legitimate expectation of privacy in the
identifying information derived from the blood sampling.
Rise v. Oregon, 59 F.3d 1556, 1560 (9th Cir. 1995); see Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992).
Finally, the Supreme Court of the United States has held that a convicted person has a diminished
expectation of privacy in the penal context. For example, in Hudson v. Palmer, 486 U.S. 517, 530 (1984), the
Court held that persons lawfully convicted lose their right to privacy in routine searches of their jail cells. See
Hudson, 468 U.S. at 530 (discussing convicted felons' diminished expectation of privacy). Further, the Supreme
Court has held that even probationers lose their right to privacy in the search of their homes pursuant to an
established law enforcement program. See Griffin v. Wisconsin, 483 U.S. 868, 880 (1987).
Gaines argues, however, that limitations on convicted persons' privacy rights are only permissible when
maintaining order and security in a penal institution, and such privacy rights may not be diminished for the
purpose set forth in the genetic marker testing statuteassisting the State in solving future crimes. A similar
argument was rejected by the Ninth Circuit in Rise, where the court held that even when there is no legitimate
penal interest:
[T]he State may interfere with an individual's Fourth Amendment interest with less than probable cause
and without a warrant if the intrusion is only minimal and is justified by law enforcement purposes.
Rise, 59 F.3d at 1559 (citing Michigan State Police Dep't v. Sitz, 496 U.S. 444, 450 (1990)). In sum, the
overwhelming weight of authority supports the position that a convict has a diminished expectation of privacy in
his identity, despite the fact that the State's interest does not concern administration of penal or detention
facilities.
Another factor balanced against the government's interest is the intrusive nature of the search. Courts
considering Fourth Amendment challenges have determined that blood draws from convicted persons to gather
genetic information for identification involve only a minimal intrusion. See, e.g., Rise, 59 F.3d at 60; Jones, 962
F.2d at 307. Most of these courts have relied on United States Supreme Court precedent,
United States Supreme Court precedent, repeatedly concluding that a blood draw is not an unduly extensive
imposition, see Winston v. Lee, 470 U.S. 753, 762 (1985), and that it would not be considered offensive by
even the most delicate, see Breithaupt v. Abram, 352 U.S. 432, 436 (1957). See also Skinner v. Railway Labor
Executives' Ass'n, 489 U.S. 602, 625 (1989) (blood tests do not infringe significant privacy interests);
Schmerber v. California, 384 U.S. 757, 771 (1966) (noting that drawing blood is commonplace).
Gaines further argues that there are greater protected privacy interests in an individual's bodily fluids, and
therefore a warrant and probable cause are always required before a blood draw absent exigent circumstances.
Other courts have rejected similar arguments. In Rise, the court noted that the purpose of the warrant and
probable cause requirementto protect citizens from arbitrary acts of government by having a neutral
magistrate evaluate whether the government's intrusion was warrantedwas satisfied under Oregon's genetic
marker statute because the statutory criteria were standardized, requiring conviction of a predicate offense before
testing. Rise, 59 F.3d at 1561-62. Thus, there were virtually no facts for a neutral magistrate to evaluate. Id.
Similarly, the Nevada statutory criteria are standardized; certainly the statute objectively enumerates
certain felonies for which DNA testing is prescribed. Thus, there would be no criteria for a magistrate to
evaluate. We concur with the overwhelming weight of authority that the blood draw is a minimally intrusive
search for which probable cause and a warrant are not always necessary.
Courts have uniformly held that the government interest outweighs a convict's diminished right for privacy
in his genetic markers because such information provides law enforcement with a dramatic new tool that can be
used to accurately identify a criminal suspect attempting to conceal his identity. See Jones v. Murray, 962 F.2d
302, 308 (4th Cir. 1992) (noting that a DNA test can exculpate an accused as much as it can implicate him);
Landry v. Attorney General, 709 N.E.2d 1085, 1090 (Mass. 1999). Moreover, because of the high rate of
recidivism among sexual and violent offenders, and because investigations of violent and sexual crimes are more
likely to yield evidence from which DNA can be derived, compilation of DNA samples from violent and sexual
offenders furthers the legislative purpose of solving future crimes. See Jones, 962 F.2d at 308; Cooper v.
Gammon, 943 S.W.2d 699, 704 (Mo. Ct. App. 1997).
Gaines, however, argues that the State's interest in testing his DNA is weak because he was not a violent
felon. We conclude that this argument lacks merit. First, Gaines pleaded guilty to two counts of burglary, a
felony enumerated in the statute for which genetic marker testing is required.
genetic marker testing is required. Second, we note that burglary has been an included offense in some states'
genetic marker testing statutes because of its high recidivism rate. See Jones, 962 F.2d at 314.
B. Equal protection
[Headnotes 10-15]
The Equal Protection Clause of the Fourteenth Amendment mandates that all persons similarly situated
receive like treatment under the law. See Olivas, 856 P.2d at 1087. An equal protection analysis first requires
that the appropriate standard of judicial scrutiny be identified, and then that the statutory classification be
considered under that appropriate level of scrutiny. See id. Strict scrutiny is applied in cases involving
fundamental rights, such as privacy, marriage, or cases involving a suspect class. See id. Under the strict scrutiny
approach, legislation should be sustained only if it is narrowly tailored and necessary to advance a compelling
state interest. See id. In contrast, a lesser standard for reviewing equal protection challenges applies where the
classification does not affect fundamental liberties. Under this level of scrutiny, legislation at issue will be
upheld provided the challenged classification is rationally related to a legitimate governmental interest. See
Sereika v. State, 114 Nev. 142, 143-45, 955 P.2d 175, 179 (1998).
[Headnote 16]
Gaines contends that this court should apply strict scrutiny because the statute implicates Gaines'
fundamental right to privacy. We disagree with this contention.
4
We hold that the rational basis level of
scrutiny is applicable because a convicted person has no fundamental right to be free from DNA genetic marker
testing. See Olivas, 856 P.2d at 1087 (citing Schmerber v. California, 3S4 U.S. 757 {1966),
__________

4
In so doing, we recognize that at least one court has applied strict scrutiny in evaluating a genetic marker
testing statute under the Equal Protection Clause. See Vanderlinden v. Kansas, 874 F. Supp. 1210, 1217 (D.
Kan. 1995) (holding that because privacy rights were implicated by genetic marker testing, the application of
strict scrutiny was warranted). However, even in Vanderlinden, where the strict scrutiny standard was applied,
the court concluded that the genetic marker testing statute did not violate the Equal Protection Clause because it
advanced a compelling state interest:
Rather than imposing an improper burden on a suspect class, the Kansas statute finds its focus on that
group of felons who are most likely as repeat offenders to commit the type of crime in which DNA may
be left. The state interest in advancing law enforcement is significant, and while the DNA databank surely
will not positively identify the perpetrator of every crime, its value should not be dismissed lightly. The
court finds the statute is narrowly drawn, advances a compelling state interest, and does not violate equal
protection principles.
Id.
California, 384 U.S. 757 (1966), and Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989)); see
also Roe v. Marcotte, 193 F.3d 72, 83 (2d Cir. 1999); Boling v. Romer, 101 F.3d 1336, 1341 (10th Cir. 1996).
[Headnote 17]
In applying a rational basis standard, we conclude that NRS 176.0913 does not offend notions of equal
protection because of the existence of a rational basis for requiring genetic marker testing, namely the
apprehension of repeat and violent offenders.
C. Due process
[Headnote 18]
Gaines also argues that the genetic marker statute violates substantive due process because the right to
bodily privacy is a fundamental right and may be restricted only if the state is able to show both a compelling
state interest and that the state has adopted the least restrictive means of effecting its purpose. We conclude that
this contention lacks merit because, as stated previously, a defendant has no fundamental right to be free from a
blood test and because there is a rational basis in support of NRS 176.0913.
5
See supra Section II(B). Quite
notably, the few appellate courts that have considered whether genetic marker testing violates an offender's right
to due process under the Fifth and Fourteenth Amendments have flatly rejected this argument. See Rise v.
Oregon, 59 F.3d 1556, 1562-63 (9th Cir. 1995); Vanderlinden, 874 F. Supp. 1210, 1215-16 (D. Kan. 1995);
Kruger v. Erickson, 875 F. Supp. 583, 587 (D. Minn. 1995); Cooper v. Gammon, 943 S.W.2d 699, 705-06 (Mo.
Ct. App. 1997).
In concluding that genetic marker testing does not offend due process, these courts have relied exclusively on
the Supreme Court's holdings in Breithaupt v. Abram, 352 U.S. 432 (1957), and Schmerber v. California, 384
U.S. 757 (1966). See Kruger, 875 F. Supp. at 587 (citing Breithaupt, 352 U.S. at 433-37); Rise, 59 F.3d at
1562-63 (citing Breithaupt, 352 U.S. at 435, and Schmerber, 384 U.S. at 759-60); Cooper, 943 S.W.2d at
705-06 (citing Schmerber, 384 U.S. at 759-60, and Breithaupt, 352 U.S. at 435). In Schmerber and Breithaupt,
the Supreme Court concluded that the proper taking of a blood sample for purposes of a
criminal investigation does not offend due process because it did not shock the
conscience or offend one's sense of justice.
__________

5
We note that the Vanderlinden court concluded that genetic marker testing implicated a fundamental
privacy right, and thus a statute authorizing such testing must be narrowly drawn and supported by a compelling
state interest. See Vanderlinden, 874 F. Supp. at 1215-16. Despite the fact that the genetic marker testing statute
was subject to this heightened standard of review, the Vanderlinden court concluded that it did not offend due
process because it was narrowly drawn and because the State had a compelling law enforcement interest in
solving crimes. Id. at 1215.
cluded that the proper taking of a blood sample for purposes of a criminal investigation does not offend due
process because it did not shock the conscience or offend one's sense of justice. See id. Accordingly, under this
approach, the Due Process Clause is not implicated because the blood test is routine, and therefore does not
concern a fundamental right. We concur with the Supreme Court's analysis. NRS 176.0913 does not offend due
process.
D. Eighth Amendment
Gaines also argues that genetic marker testing violates the Eighth Amendment, which prohibits cruel and
unusual punishment, because it essentially constitutes scientific experimentation and may result in the use of
excessive force. We conclude that this argument lacks merit.
[Headnotes 19, 20]
The Eighth Amendment prohibits barbarous physical punishment and the unnecessary and wanton
infliction of pain without justification. See Whitley v. Albers, 475 U.S. 312, 319 (1986). As previously
discussed, the Supreme Court has determined that blood tests are not an unduly extensive imposition and
would not be considered offensive by even the most delicate. Winston v. Lee, 470 U.S. 753, 762 (1985); see
also Breithaupt, 352 U.S. at 436. In light of the holdings in Winston and Breithaupt, we cannot conclude that a
blood test properly performed by a medical provider is barbarous or involves wanton physical punishment. Other
courts that have considered whether genetic marker testing violated the Eighth Amendment have concluded
likewise. See Kruger v. Erickson, 875 F. Supp. 583, 587 (D. Minn. 1995); Ryncarz v. Elkenberry, 824 F. Supp.
1493, 1500-01 (E.D. Wash. 1993).
Accordingly, we conclude that the blood draw authorized by NRS 176.0913 does not violate the Eighth
Amendment.
E. Overbreadth
[Headnote 21]
Gaines argues that NRS 176.0913 is overbroad because there are no restrictions on the amount of blood
drawn, the testing of the blood, the time period for keeping the test results, and no requirement that the State
dispose of the remaining portions of blood not used in the DNA testing. Essentially, Gaines is concerned that
the State will use the DNA test results for a discriminatory or invasive purpose, such as determining a convict's
predisposition to physical or mental disease.
The plain language of NRS 176.0913 limits the purpose of testing to identification. See subsection 1(b)
(mandating that the samples be used for "determin[ing] the genetic markers of the blood").
ples be used for determin[ing] the genetic markers of the blood). Further, Gaines' contentions concerning
abuse of the genetic marker data are merely speculation and conjecture, as he has provided this court with no
evidence regarding such abuse. Finally, we note that the Supreme Court of the United States has rejected an
analogous argument:
While this procedure [collection of blood and urine for mandatory drug testing] permits the Government
to learn certain private medical facts that an employee might prefer not to disclose, there is no indication
that the Government does not treat this information as confidential, or that it uses the information for any
other purpose.
Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 626 n.6 (1989).
Accordingly, we conclude that NRS 176.0913 is not overbroad.
CONCLUSION
We conclude that the district court did not err in refusing to credit Gaines for time served in his three
separate cases. We further conclude that NRS 176.0913 is constitutional.
____________
116 Nev. 374, 374 (2000) State v. Dist. Ct.
PAVLIKOWSKI, District Judge, Respondents, and DARRIS TREMEL TAYLOR, Real Party in
Interest.
No. 34349
March 13, 2000 997 P.2d 126
This original petition for a writ of mandamus challenges an order of the district court granting a motion to
strike a second amended information. Eighth Judicial District Court, Clark County; Joseph S. Pavlikowski,
Judge.
State filed petition for writ of mandamus challenging order of the district court, which granted murder
defendant's motion to strike second amended information, which was filed on morning of trial and alleged two
additional theories of murder. The supreme court, Shearing, J., held that: (1) defendant's substantial rights were
prejudiced by the addition of aiding and abetting theory, but (2) defendant's substantial rights were not
prejudiced by the addition of felony murder theory.
Petition granted in part.
Tufteland, Chief Deputy District Attorney, Clark County, for Petitioner.
Philip J. Kohn, Special Public Defender, and Dayvid J. Figler, Deputy Special Public Defender, Clark
County, for Real Party in Interest.
The State is required to give adequate notice to the accused of the various theories of prosecution.
Amendment of the information prior to trial is an appropriate method for giving the accused the notice to which he or she is
entitled. NRS 173.095(1).
3. Criminal Law.
Murder defendant's substantial rights were prejudiced when, on morning of trial, State filed second amended information which
added theory of aiding and abetting murder, and thus trial court properly granted defendant's motion to strike this theory, where there
was no indication in court documents that defendant received adequate notice of aiding and abetting theory prior to morning of trial,
and second amended information set forth no additional information as to specific acts constituting the means of aiding and abetting.
NRS 173.095(1).
4. Criminal Law.
Murder defendant's substantial rights were not prejudiced when, on morning of trial, State filed second amended information
which added theory of felony murder, and thus trial court abused its discretion in striking this theory, where criminal complaint had
placed defendant on notice that State was seeking to prosecute him for both murder with use of deadly weapon and robbery with use of
deadly weapon, and complaint, information and amended information alleged that defendant committed murder and robbery of victim.
NRS 173.095(1).
5. Mandamus.
Writ of mandamus was available to State with respect to trial court's abuse of discretion in striking theory of felony murder from
second amended information, as State had no plain, speedy and adequate remedy in ordinary course of law. Order granting motion to
strike amended information was not among the determinations that were appealable by State. NRS 34.170, 173.095(1), 177.015.
6. Mandamus.
A writ of mandamus is available to compel the performance of an act which the law requires as a duty resulting from an office,
trust or station, or to control an arbitrary or capricious exercise of discretion. NRS 34.160.
7. Mandamus.
A writ of mandamus will not issue if petitioner has a plain, speedy and adequate remedy in the ordinary course of law. NRS
34.170.
8. Mandamus.
Mandamus is an extraordinary remedy, and it is within the discretion of the supreme court to determine if a petition will be
considered.
OPINION
This petition seeks a writ of mandamus directing the district court to vacate its order granting Darris
Tremel Taylor's motion to strike a second amended information. Taylor was originally charged by a
criminal information with willful, deliberate and premeditated murder with the use of a deadly weapon.
The State filed a second amended information on the morning trial was to begin which alleged two
additional theories of murder: (1) aided and abetted murder, and (2) felony murder. For the reasons
discussed below, we conclude that the district court did not abuse its discretion in striking the theory of
aided and abetted murder. However, we further conclude that the district court manifestly abused its
discretion in striking the theory of felony murder because Taylor had notice of this theory.
FACTS
On March 2, 1996, the body of Melvin Charles Rayford was found in Room 35 at the City Center Motel in
Las Vegas; the victim had died as a result of three gunshot wounds to the head. A criminal complaint was
subsequently filed in the justice court charging Taylor with robbery with the use of a deadly weapon, murder
with the use of a deadly weapon, and possession of a firearm by an ex-felon. COUNT II, murder with the use
of a deadly weapon, stated the defendant did then and there, without authority of law, and with
premeditation and deliberation, and with malice aforethought, wilfully and feloniously kill MELVIN
CHARLES RAYFORD, a human being, by shooting at and into the body of the said MELVIN CHARLES
RAYFORD, with a deadly weapon, to-wit: a firearm.
A preliminary hearing was conducted on December 5, 1996. At the conclusion of the preliminary hearing,
the justice court determined that there was probable cause to believe Taylor had committed the crimes in
question and bound Taylor over for trial in the district court. On December 6, 1996, a criminal information
was filed in the district court. The murder count contained in the information was identical to that contained
in the criminal complaint. On December 29, 1997, the State filed an amended information, which severed the
ex-felon in possession of a firearm count and added one additional witness.
On March 22, 1999, the morning the trial was to begin, the State filed a second amended information in
the district court. The murder count was amended to add alternative theories of liability:
Defendant being liable under one or more of the following theories, to-wit: 1. by directly committing said
act with premeditation, deliberation, and with malice aforethought; and/or 2. Defendant aiding and/or
abetting another unknown individual during the commission of this murder; and/or 3. by Defendant
committing this murder during the commission of a felony, to-wit: robbery.
Taylor objected to the filing of the second amended information, and filed a motion to dismiss, or in the
alternative, motion to strike the second amended information. Taylor argued: (1) the second amended
information should be dismissed because the State failed to set forth a clear, definite and concise statement of
the offense as required by NRS 173.075(1),
1
(2) the case should be dismissed because of prosecutorial
misconduct, preaccusatorial delay and denial of speedy trial rights, and/or (3) the second amended information
should be stricken because different offenses were charged, the substantial rights of the defendant were
prejudiced, and portions of the second amended information were inconsistent with one another. The State
opposed the motion, and Taylor filed a reply.
On May 27, 1999, the district court orally denied the motion to dismiss but granted the motion to strike. The
State then filed a motion to clarify the order granting Taylor's motion to strike, seeking clarification as to
whether the entire second amended information was stricken or whether only that portion alleging aiding and
abetting was stricken. On June 10, 1999, the district court conducted a hearing regarding the previous order and
ultimately entered a written order striking both theories, aiding and abetting and felony murder, from the second
amended information.
The State has filed this original petition for writ of mandamus challenging the district court's order granting
the motion to strike. This court ordered Taylor to file an answer against issuance of the requested writ and
granted the State's motion for a stay of the proceedings below.
DISCUSSION
[Headnotes 1, 2]
The State is required to give adequate notice to the accused of the various theories of prosecution. See
Alford v. State, 111 Nev. 1409, 906 P.2d 714 (1995); Koza v. State, 104 Nev. 262, 756 P.2d 1184 (1988);
Barren v. State, 99 Nev. 661, 669 P.2d 725 (1983).
__________

1
NRS 173.075(1) provides, [t]he indictment or the information must be a plain, concise and definite written
statement of the essential facts constituting the offense charged.
NRS 173.095(1) provides, [t]he court may permit an indictment or information to be amended at any time
before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant
are not prejudiced. Amendment of the information prior to trial is an appropriate method for giving the accused
the notice to which he or she is entitled.
The State contends that the district court's granting of Taylor's motion to strike the second amended
information was an arbitrary and capricious exercise of discretion. The State argues that it had an absolute right
to amend the information pursuant to NRS 173.095(1) to provide notice of alternative theories of murder
because the amendments did not contain any additional charges and did not prejudice the substantial rights of
Taylor.
First, we agree with the State's argument that the amendment of the information to set forth theories of aiding
and abetting murder and felony murder merely added alternative theories of the mental state required for first
degree murder and did not amount to the charging of additional or different offenses. See Holmes v. State, 114
Nev. 1357, 1364, 972 P.2d 337, 342 (1998); see generally Evans v. State, 113 Nev. 885, 893-96, 944 P.2d 253,
258-60 (1997).
[Headnote 3]
We further conclude, however, that the district court did not abuse its discretion in determining that Taylor's
substantial rights were prejudiced by the amendment alleging aiding and abetting. Taylor's substantial rights
were effectively prejudiced by the State's delay in amending the information to include this theory. Unlike the
felony murder theory discussed below, there is no indication from the documents before this court that prior to
the morning of trial Taylor received adequate actual notice of the State's theory that he aided and abetted the
murder of Rayford.
2
Moreover, in Barren, this court held:
[W]here the prosecution seeks to establish a defendant's guilt on a theory of aiding and abetting, the
indictment should specifically allege the defendant aided and abetted, and should provide
additional information as to the specific acts constituting the means of the aiding
and abetting so as to afford the defendant adequate notice to prepare his defense.
__________

2
It appears that the State may have conceded below that the aiding and abetting theory was properly stricken.
Specifically, at the hearing on the State's motion to clarify, the State argued:
What we want to make sure of here today is that in fact the State is being allowed to proceed on at
least the felony murder.
You will note in their response basically it did address the aiding and abetting, and the State will
concede that actual theory but we are asking to make sure that it is clarified that we were actually
allowed to proceed on the felony murder theory of the murder with the use.
(Emphasis added.)
should provide additional information as to the specific acts constituting the means of the aiding and
abetting so as to afford the defendant adequate notice to prepare his defense.
99 Nev. at 668, 669 P.2d at 729. The second amended information set forth no additional information as to the
specific acts constituting the means of aiding and abetting. Therefore, our intervention with respect to this
portion of the district court's order is not warranted.
[Headnote 4]
The district court did manifestly abuse its discretion, however, in determining that Taylor's substantial rights
would be violated if the State amended the information to include a theory of felony murder. See Koza, 104 Nev.
at 264, 756 P.2d at 1185-86. Taylor had notice of this theory in the criminal complaint filed in 1996. The
complaint placed Taylor on notice that the State was seeking to prosecute him for both murder with the use of a
deadly weapon and robbery with the use of a deadly weapon. The criminal complaint, the information, and the
amended information alleged that Taylor committed the murder and robbery of the victim, Rayford, on or
between March 1, 1996, and March 2, 1996. Thus, Taylor's substantial rights were not prejudiced when the State
amended the information to include a theory of felony murder, and we conclude that the district court
sufficiently abused its discretion in striking this theory so as to warrant our intervention by extraordinary writ.
3

CONCLUSION
[Headnotes 5-8]
A writ of mandamus is available to compel the performance of an act which the law requires as a duty
resulting from an office, trust or station, NRS 34.160, or to control an arbitrary or capricious exercise of
discretion. See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). A writ of mandamus
will not issue, however, if petitioner has a plain, speedy and adequate remedy in the ordinary course of law. See
NRS 34.170. Further, mandamus is an extraordinary remedy, and it is within the discretion of this court to
determine if a petition will be considered. See Poulos v. District Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178
(1982); see also State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983). A
district court order granting a motion to strike an amended information is not among the determinations that are
appealable by the State.
__________

3
In his answer, Taylor argues that the second amended information did not contain a sufficiently definite and
concise statement of the felony murder theory. We reject this contention.
State. See NRS 177.015. Thus, the State has no plain, speedy, and adequate remedy in the ordinary course of
law.
Accordingly, we grant, in part, the State's petition for a writ of mandamus. The clerk of this court shall issue
a writ of mandamus directing the district court to vacate its order granting Taylor's motion to strike the second
amended information as it pertained to the theory of felony murder and permit the State to amend the
information to include a theory of felony murder. Further, we vacate the stay previously imposed by our order of
June 23, 1999.
____________
116 Nev. 380, 380 (2000) Campbell v. Maestro
ROBERT CAMPBELL, Appellant, v. JOANNA MAESTRO and LINDA COSTANTINO, Respondents.
No. 31051
March 24, 2000 996 P.2d 412
Appeal from an order of the district court striking a request for trial de novo in a civil action following
proceedings conducted pursuant to the Nevada Arbitration Rules. Eighth Judicial District Court, Clark County;
Gene T. Porter, Judge.
Motorist who was sued for negligence in connection with collision requested trial de novo following
arbitration proceedings. The district court denied request, and motorist appealed. The supreme court, Maupin, J.,
held that: (1) litigation activities of insurer could be considered by district court in determining whether insured
had participated in good faith in arbitration process; (2) trial court could properly consider insured's request for
trial de novo on all issues including liability, after liability had previously been conceded, as evidence of bad
faith; (3) striking of request for trial de novo was too severe a sanction; and (4) insurer's failure to settle or to pay
certain claims during arbitration was not pertinent to question of good faith participation.
John V. Riggs, Las Vegas, for Appellant.
Mainor & Harris and Clark Seegmiller, Las Vegas, for Respondents.
1. Arbitration.
Litigation activities by automobile insurer, which pursuant to terms of policy controlled the defense of personal injury action
against insured, could be considered by district court, when ruling on insured's request for a trial de novo, in determining whether
insured had participated in good faith in arbitration process. NAR 22.
2. Arbitration.
Trial court could find that defendant motorist's request for trial de novo on all issues, including liability, following arbitration
proceedings in negligence action was evidence of bad faith, where at the time of filing request, defendant motorist had conceded
liability and paid plaintiff motorist's property damage requests. NAR 22.
3. Arbitration.
Bad faith of defendant motorist in automobile negligence action that was initially submitted to arbitration, in seeking trial de novo
on all issues including liability after motorist had previously conceded liability, did not warrant severe sanction of striking request. Bad
faith on liability issue did not necessarily mean that defendant's position regarding value of injuries claimed by plaintiffs was also
unfounded. NAR 22.
4. Arbitration.
Refusals by automobile insurer, which assumed defense of personal injury action, to honor certain claims or to enter into
meaningful settlement negotiations during arbitration proceedings were not pertinent to question of whether insured, who subsequently
sought trial de novo, had participated in good faith in arbitration. NAR 22.
5. Arbitration.
Failure by any party to settle during arbitration proceedings is not relevant to good faith participation, for purposes of determining
that party's entitlement to a trial de novo. NAR 22.
6. Arbitration.
Improper imposition of defenses to liability and/or damages, or use of the arbitration process as a device to obstruct and delay
payment, are relevant to whether a party has failed to participate in good faith in arbitration proceedings and thus waived right to a trial
de novo. NAR 22.
OPINION
This case arises from an October 23, 1995, automobile accident in a Las Vegas shopping center
parking lot. Appellant Robert Campbell claims that his automobile engine stalled while pulling out of the
lot onto a public thoroughfare. After restarting the car, he proceeded in reverse back into the lot to avoid
oncoming traffic. In the process of completing this maneuver, Campbell's vehicle struck another
automobile occupied by respondents Joanna Maestro and Linda Costantino.
It was ultimately determined that Maestro and Costantino were injured in the accident. Consequently,
on June 17, 1996, they both commenced the action below against Campbell for their personal injuries.
Pursuant to an automobile liability policy issued to Campbell, Nevada General Insurance (NGI)
retained counsel to represent him in the litigation. It is undisputed that NGI controlled the defense from
that point forward as was its right under the policy.
the policy. The answer to the complaint denied liability and alleged contributory negligence on Maestro's part.
This was done, according to the record, without consulting Campbell.
The case was assigned to the Nevada Court Annexed Arbitration Program under Nevada Arbitration Rule
(NAR) 3. Although the liability of Campbell seemed quite clear, that issue remained contested until shortly
before the arbitration hearing held on May 9, 1997, after the depositions of all parties were concluded.
1
NGI
did not settle Maestro's $2,041.69 property damage claims until immediately prior to the arbitration hearing.
According to the record, contacts for purposes of settlement prior to the hearing, initiated by plaintiffs' counsel
with NGI counsel, were either rebuffed or failed to elicit a response.
2

The arbitrator's May 13, 1997, decision recites his concern that Campbell's defense attorney was not
representing Campbell, but rather NGI, Campbell's insurer.
3
The arbitrator awarded medical expenses and
other damages to both Maestro and Costantino. Further, the arbitrator found that Nevada General Insurance
failed to arbitrate this matter in good faith and, as a result, awarded attorney's fees to Maestro and Costantino.
Campbell filed a request for trial de novo and a demand for jury trial. See NAR 18 and 20. Maestro and
Costantino moved to strike the request. The district court determined that Campbell, through his insurer, failed
to arbitrate in good faith and granted the motion to strike. See NAR 22. In support of this ruling, the district
court made the following findings:
Defendant failed to participate in good faith in the Arbitration proceeding. Specifically,
1. Defendant Robert Campbell admitted in his deposition that the accident was his fault.
2. Defendant's insurance company denied liability for a year and a half after the accident.
3. Defendant's insurance company did not pay for Plaintiff's property damage until a year and a half
after the accident, allegedly because there was a dispute about liability.
__________

1
Campbell ultimately admitted liability at his April 1, 1997, deposition.

2
Notwithstanding the concession of liability, Campbell's counsel continued to maintain during oral argument
on this appeal that an emergency defense could have been successfully lodged, and that an issue of fact
remained on the question of whether Maestro was guilty of contributory/comparative negligence.

3
Such a concern, though understandable, fails to account for the fact that NGI had the right to control the
defense and had no direct duties to these plaintiffs under Nevada law, other than those incident to its
participation in the litigation. See Gunny v. Allstate Ins. Co., 108 Nev. 344, 830 P.2d 1335 (1992); Crystal Bay
General Imp. Dist. v. Aetna Cas. & Sur., 713 F. Supp. 1371, 1377 (D. Nev. 1989); Tweet v. Webster, 610 F.
Supp. 104 (D. Nev. 1985).
the accident, allegedly because there was a dispute about liability.
4. Defendant's attorney filed an Answer denying that the Defendant was negligent, and asserting as an
affirmative defense an allegation that the accident was caused by negligence by the Plaintiff.
5. The Arbitrator specifically found that the Defendant's insurance company failed to Arbitrate this
case in good faith.
6. The Defendant's insurance company did not make any settlement offer for Plaintiff Maestro's
personal injury claims until approximately a year and a half after the accident.
Campbell timely appealed.
Campbell contends the district court abused its discretion in finding that Campbell and NGI did not
participate in good faith during the arbitration proceedings. Specifically, Campbell argues that (1) an arguably
viable defense was litigated until abandoned in good faith and (2) the findings of fact are insufficient to justify
the drastic remedy imposed by the district court.
A district court's findings will not be disturbed on appeal unless they are clearly erroneous and are not based
on substantial evidence. Gibellini v. Klindt, 110 Nev. 1201, 1204, 885 P.2d 540, 542 (1994); see also NRCP
52(a). We conclude the above findings of fact, although substantially supported by the record, do not, as a matter
of law, support the sanction imposed. See Nevada Ins. Guaranty v. Sierra Auto Ctr., 108 Nev. 1123, 1126, 844
P.2d 126, 128 (1992). Thus, we conclude that the matter should be remanded to the district court for further
proceedings.
Findings related to the participation of NGI in the lawsuit
[Headnote 1]
NGI first contends that its litigation activities on behalf of Campbell were irrelevant to any findings
regarding whether a party to the arbitration proceedings, Campbell, acted in bad faith. In this, NGI clearly
misperceives its role and legal relationship to these types of matters. NGI had the right and obligation to defend
Campbell under its automobile liability policy. This right and obligation gave NGI the right to control the
litigation, subject to the implied covenant of good faith and fair dealing owed to its insured, including the right
to choose counsel to represent Campbell. Further, NGI counsel owed an ethical obligation under rules of
professional responsibility to disclose information to both NGI and Campbell. This dual agency relationship
was created by consent through the contract of liability insurance. See John Alan Appleman, Insurance Law
and Practice 7c, at 4681 (1979) (discussing the interrelationships created by the retention of defense
counsel by liability insurers).
defense counsel by liability insurers). It is incongruous for NGI to deny this relationship and to assert that the
district court cannot take its litigation activities into account in resolving questions of good faith participation in
the arbitration proceedings.
Thus, the district court appropriately considered NGI's litigation conduct for purposes of determining good
faith participation in the arbitration process.
Improper assertion of defenses
[Headnote 2]
Under the facts of this case, the district court did not abuse its discretion in finding, as a factual matter, that
Campbell's request for a trial de novo on all issues, including liability, was evidence of bad faith. At the time of
the filing of the request, Campbell had conceded liability and paid Maestro's property damage claims. Yet in
pleadings and argument on the motion to strike, Campbell asserted he had a right to trial on the issue of
liability, claiming there was a valid issue on the defense of necessity. The assertion of a marginal defense after
abandoning that defense in the arbitration proceeding is certainly a factor the district court could consider in
determining bad faith.
[Headnote 3]
However, a conclusion that Campbell was contesting liability in bad faith does not necessarily support a
finding that Campbell's position regarding the value of any injuries suffered by Maestro and Costantino is also
invalid. The record before the district court contains little or no factual allegations that would support a
conclusion that Campbell's position regarding a trial on damages was unfounded and made for the purposes of
delay or harassment. For this reason, we conclude that the severe sanction of striking a request for a trial de
novo was not warranted in this case. See Young v. Johnny Ribeiro Bldg., Inc., 106 Nev. 88, 92-93, 787 P.2d
777, 780 (1990) (where dismissal with prejudice was granted for discovery abuse this court noted that such a
severe sanction should be imposed only after a consideration of all the factors involved). The extent to which a
less severe course of action is warranted must be left to the district court on remand.
Failures to pay property damages and to make settlement offers
[Headnote 4]
The district court correctly noted the apparent intransigence of NGI and its counsel with regard to the
prosecution of Campbell's defense. However, there is no duty under the arbitration rules governing good or bad
faith participation in arbitration proceedings to enter into settlement negotiations or to agree to make payment
of any claim at any time regardless of the merits thereof.
of any claim at any time regardless of the merits thereof. Refusals regarding settlement or payment, whether
ill-advised or not, must be resolved under NRCP 68, NRS 17.115, NRS 18.010, NRCP 11, NAR 22(B) and the
various rules regarding the payment of interest on judgments. Thus, refusals by NGI to honor certain claims or to
enter into meaningful settlement negotiations, although possibly implicating its obligations to Campbell to act in
good faith to avoid a judgment in excess of his policy limits, were not pertinent to the question of good faith
participation in the arbitration program.
Other issues raised by the conduct of NGI
NGI concedes that its trial preparation with regard to the liability and damage issues was not particularly
extensive. However, NGI's conduct bears little distinction from that noted in Chamberland v. Labarbera, 110
Nev. 701, 877 P.2d 523 (1994). In Chamberland, this court held that the refusal to grant a trial de novo was too
severe a sanction despite the fact that appellant failed to conduct any discovery for the arbitration hearing and,
additionally, failed to personally attend the arbitration hearing. Id. at 705, 877 P.2d at 525.
CONCLUSION
The district court made particularized findings per Chamberland that NGI failed to arbitrate in good faith
per NAR 22(A). It found that NGI improperly denied liability for a year and one-half after the accident, that a
clearly valid claim for property loss went unpaid until the day of the arbitration hearing, that NGI failed to make
settlement overtures, and that it improperly interposed an affirmative defense to liability. However, aside from
the issues we have determined may not be considered in striking a request for trial de novo, and aside from the
factors we have deemed insufficient to justify the order, the findings do not support the sanction ultimately
imposed.
[Headnotes 5, 6]
Failure to settle by any party is not relevant to good faith participation. Improper imposition of defenses to
liability and/or damages, or use of the arbitration process as a device to obstruct and delay payment, are relevant.
4
See NAR 22(B). Failure to meaningfully participate in the arbitration process on significant contested issues,
dilatory tactics, changes in litigation tactics or strategy after seeking trial de novo in district court are also
relevant.
__________

4
As noted, the intransigence of the defense on the issue of liability, while relevant, does not merit the full
sanction imposed. Again, other sanctions may be appropriate on remand.
vant. For example, failure to depose, interview or investigate witnesses or to develop other evidence during
arbitration proceedings may be relevant where no restrictions on such preparation have been imposed by the
arbitrator. A complete change of approach in subsequent district court proceedings under such circumstances
could be evidence of abuse of the arbitration process. Had findings along these lines been offered for review, we
would not have hesitated to affirm the order striking the request for trial de novo. While we question the wisdom
of the handling of the matter by NGI, and while some of the tactics it used are evidence of bad faith, the record
below does not justify the complete elimination of the right to proceed to trial.
5

Accordingly, we hereby reverse the district court's order striking the request for trial de novo and remand this
matter to the district court for further proceedings consistent with this opinion.
____________
116 Nev. 386, 386 (2000) Gittings v. Hartz
ANGELA GITTINGS, Appellant, v. AMY LEIGH HARTZ, Respondent.
No. 31010
March 24, 2000 996 P.2d 898
Appeal from an order of the district court striking a request for trial de novo following proceedings
conducted pursuant to the Nevada Arbitration Rules. Eighth Judicial District Court, Clark County; Mark W.
Gibbons, Judge.
Automobile accident victim filed a complaint for personal injuries against the driver of the second vehicle
involved in the accident. Following an arbitrator's award in favor of the victim, the driver filed a request for a
trial de novo. The district court granted the victim's motion to strike the request, and the driver appealed. The
supreme court, Becker, J., held that evidence did not prove driver's bad faith in arbitration, so as to waive right
to trial de novo.
__________

5
Our ruling today is in large part a recognition of the importance we attach to the right to a trial by jury in all
civil matters. See Chamberland, 110 Nev. at 704, 877 P.2d at 524.
Campbell also raises various constitutional issues, which, in light of our disposition, are moot. See Director,
Dep't Prisons v. Arndt, 98 Nev. 84, 86, 640 P.2d 1318, 1320 (1982).
Rawlings, Olson, Cannon, Gormley & Desruisseaux and Bryan W. Lewis and Michael A. Federico, Las
Vegas, for Appellant.
Kelly & Sullivan, Ltd., and Gloria M. Navarro, Las Vegas, for Respondent.
1. Arbitration.
Bare assertions, such as a claim that an arbitration award was clearly reasonable and that therefore a defendant driver's decision to
contest it had to be based on a desire to harass automobile accident victim or delay payment of a valid claim, are not an appropriate
foundation for a motion to strike a trial de novo, though, if properly documented, the nature of an arbitration award could be relevant to
inquiries under the Nevada Arbitration Rule providing for waiver of right to trial de novo. NAR 22(A), (B).
2. Jury.
Constitutional right to a jury trial in civil proceedings can be waived by various means prescribed by law. Const. art. 1, 3.
3. Jury.
Constitutional right to a jury trial is not waived on ground of bad faith during arbitration proceedings simply because individuals
can disagree over the most effective way to represent a client at an arbitration proceeding. Const. art. 1, 3; NAR 22(A).
4. Arbitration.
When a district court strikes a request for a trial de novo following an arbitration award, the decision is treated for purposes of
jurisdiction as a final order, subject to appellate review, and the standard of review on appeal is abuse of discretion.
5. Arbitration.
Mere failure of a party to attend or call witnesses in an arbitration hearing does not amount to bad faith or a lack of meaningful
participation waiving right to trial de novo. Const. art. 1, 3; NAR 22(A).
6. Arbitration.
Driver's decision not to seriously contest liability at an arbitration hearing or seek an independent medical examination of
automobile accident victim provided insufficient grounds for completely striking a demand for a trial de novo. Const. art. 1, 3; NAR
22(A).
7. Arbitration.
It is the substance of an arbitration hearing, not its length, that is important in determining the good faith of the participants, for
purposes of determining whether right to trial de novo has been waived. Const. art. 1, 3; NAR 22(A).
8. Arbitration.
District court had no factual record to support a conclusion that defendant driver took a lackadaisical approach to the arbitration
process in proceeding arising from automobile accident, so as to waive right to trial de novo. Court determined that the hearing was
conducted in bad faith solely on the basis of statements contained in the pleadings of the parties. Const. art. 1, 3; NAR 22(A).
9. Arbitration.
Statistics indicating that a comparatively high percentage of trial de novo requests were filed by defendant driver's insurer
following arbitration proceedings were not sufficient to establish driver's waiver of right to trial de novo
following arbitration award in favor of automobile accident victim,
tion proceedings were not sufficient to establish driver's waiver of right to trial de novo following arbitration award in favor of
automobile accident victim, absent an evidentiary hearing or a more comprehensive qualitative and quantitative statistical analysis. No
correlation was shown between requests for trial de novo and verdicts for or against the party who filed the request. Const. art. 1, 3;
NAR 22(A).
10. Arbitration.
Competent statistical information demonstrating that an insurance company has routinely filed trial de novo requests following
arbitrations without regard to the facts and circumstances of each individual case may be used to support a claim of bad faith waiving
right to trial de novo. Const. art. 1, 3; NAR 22(A).
OPINION
Respondent Amy Leigh Hartz (Hartz) filed a complaint for personal injuries arising from an
automobile accident against appellant Angela Gittings (Gittings). The matter was referred for
mandatory court-annexed arbitration pursuant to the Nevada Arbitration Rules. After the arbitrator
entered an award in favor of Hartz, Gittings filed a request for a trial de novo. Hartz moved to strike the
request, alleging that Gittings failed to arbitrate in good faith. See NAR 22(A). The district court granted
the motion, citing several reasons in support of the finding that Gittings' conduct in the arbitration
process amounted to bad faith. The district court's decision in deciding to strike Gittings' request for trial
de novo was based in significant part on statistics kept by the district court arbitration commissioner.
Gittings contends that such statistics cannot be the basis of striking a request for trial de novo. While we
conclude that such statistics may be used in determining whether or not a party meaningfully
participated in the arbitration process, the district court may not rely upon such statistics without first
conducting an evidentiary hearing on the meaning, relevancy and validity of the statistics. We therefore
reverse the order of the district court and remand for further proceedings.
FACTS
Gittings allegedly ran a red light and struck the passenger side of Hartz' vehicle. The impact was
significant enough to shatter windows and bend the frame of the Hartz vehicle. Both vehicles were deemed
total losses.
Following the accident, Hartz underwent chiropractic treatment and therapy for approximately four
months, incurring $2,414.47 in medical expenses.
in medical expenses. Hartz also missed three weeks of work at $6.50 per hour.
Approximately one month after the accident, Hartz filed a complaint for damages, alleging negligence and
negligence per se. Gittings, through counsel provided by her insurer, Allstate Insurance Company (Allstate),
filed an answer and, pursuant to the Nevada Arbitration Rules, the case was referred to the mandatory
court-annexed arbitration program. See NAR 1-24. Following the early arbitration conference where the parties
discussed proposed discovery and exchanged documents, including witness lists, the arbitrator issued a limited
discovery order. The order allowed the parties to serve interrogatories and requests for production of documents
and/or admissions. The order also permitted each side to depose the opposing party. In addition, Hartz was
ordered to sign medical and employment release authorizations for use by Gittings in obtaining records. Gittings
served interrogatories and a request for production of documents on Hartz. Gittings also deposed Hartz. Hartz
conducted no discovery.
[Headnote 1]
The arbitration hearing was held on March 18, 1997. Following the hearing, the arbitrator issued a written
award in favor of Hartz. The arbitrator awarded Hartz $9,000.00 plus pre-judgment interest and taxable costs.
Thereafter, the arbitrator granted Hartz' motion for attorney's fees, costs and pre-judgment interest.
1

Gittings filed a timely request for a trial de novo. Hartz then moved to strike the request for a trial de novo,
asserting that Gittings had failed to arbitrate in good faith and that her insurer, Allstate, was using the
arbitration process to delay payment of damages.
In support of the motion to strike, Hartz asserted that Gittings did not attend the arbitration hearing and that
her counsel called no witnesses and produced no medical evidence in opposition to the testimony presented by
Hartz to substantiate her claim. In addition, Hartz argued that Gittings conducted only cursory cross-examination
and argument during the arbitration hearing.
Gittings opposed the motion, arguing that her conduct during the arbitration process did not amount to bad
faith. Specifically Gittings noted that she conducted depositions and discovery as authorized
by the arbitrator and prepared an arbitration brief.
__________

1
The general information regarding the facts of the accident and the amount of the award are only relevant
because Hartz implies that the award was clearly reasonable and therefore Gittings' decision to contest it must be
based on a desire to harass Hartz or delay payment of a valid claim. The district court did not make such a
finding. We take this opportunity to note that bare assertions of this nature are not appropriate foundations for a
motion to strike a trial de novo. However, if properly documented, the nature of an arbitration award may be
relevant to inquiries under NAR 22(A) or (B).
Gittings noted that she conducted depositions and discovery as authorized by the arbitrator and prepared an
arbitration brief.
2

During oral argument on the motion, Hartz stressed two additional grounds for striking Gittings' request for a
trial de novo: (1) the statistics compiled by the office of the district court discovery commissioner outlining the
percentage of cases in which Allstate had requested a trial de novo, and (2) the fact that Allstate, not Gittings,
made the determination to request a trial rather than pay the arbitration award.
The district court granted Hartz' motion and entered an order striking the request for a trial de novo. Gittings
filed a motion for reconsideration. Attached to the motion for reconsideration was an affidavit signed by Gittings
indicating she had personally requested a trial de novo. Thereafter, the parties stipulated to set aside the initial
order striking Gittings' request for a trial de novo and agreed that the district court would enter a written decision
and order on both the motion to strike and the motion for reconsideration.
3
The district court granted the
motion to strike and denied the motion for reconsideration. This appeal followed.
DISCUSSION
[Headnote 2]
The Nevada Constitution provides a litigant with the right to a jury trial in civil proceedings. Nev. Const.
art. 1, 3. However, this right can be waived by various means prescribed by law. One of those means is
Nevada Arbitration Rule 22 (NAR 22). NAR 22 states that the district court may sanction an arbitration
participant by striking a request for a trial de novo if the participant has not acted in good faith. Specifically,
the failure of a party or an attorney to either prosecute or defend a case in good faith during the arbitration
proceedings shall constitute a waiver of the right to a trial de novo. NAR 22(A); see also Chamberland, 110
Nev. at 704, 877 P.2d at 523-24.
[Headnote 3]
For purposes of requesting a trial de novo, this court has equated good faith with meaningful
participation in the arbitration proceedings. Casino Properties, Inc. v. Andrews, 112 Nev. 132, 135, 911 P.2d
1181, 1182-83 (1996) (appellant failed to defend arbitration in good faith by refusing to produce
documents during discovery,
__________

2
The hearing was not reported. Nor did the parties file a statement of evidence or proceedings similar to the
types of statements required under NRAP 9(d). Information regarding the conduct of the hearing was based upon
assertions contained in the pleadings.

3
The initial order of the district court did not contain the required written findings of fact and conclusions of
law. See Chamberland v. Labarbera, 110 Nev. 701, 705, 877 P.2d 523, 535 (1994).
to defend arbitration in good faith by refusing to produce documents during discovery, failing to timely deliver a
pre-arbitration statement and failing to produce a key witness at the arbitration) (citing Gilling v. Eastern
Airlines, Inc., 680 F. Supp. 169 (D. N.J. 1988)). However, the important constitutional right to a jury trial is not
waived simply because individuals can disagree over the most effective way to represent a client at an arbitration
proceeding. See Chamberland, 110 Nev. at 705, 877 P.2d at 525 (despite failing to conduct discovery or attend
arbitration hearing, appellant meaningfully participated in arbitration where liability was not at issue by engaging
in cross-examination and disputing alleged injuries).
[Headnote 4]
When a district court strikes a request for a trial de novo, the decision is treated for purposes of jurisdiction
as a final order, subject to appellate review. The standard of review on appeal is abuse of discretion. See Casino
Properties, Inc., 112 Nev. at 135-36, 911 P.2d at 1183; Chamberland, 110 Nev. at 705, 877 P.2d at 525.
Here, the district court made the following findings:
[T]he defendant did not attend the arbitration hearing. In addition, counsel for the defendant did not call
any witnesses to testify. It also appears to be undisputed that the entire arbitration lasted for less than one
hour and the majority of the time was utilized for the direct examination of the plaintiff by her own
attorney.
Although counsel for the defendant indicates that he vigorously contested the claim of the plaintiff at
the arbitration, there appears to have been no argument made regarding the issue of liability. The only
issue raised by the defendant through argument was whether the medical treatments received by the
plaintiff were excessive. Regardless, the defendant did not introduce any countervailing medical evidence
nor did the defendant request the plaintiff to submit to an independent medical examination prior to the
arbitration.
With reference to the allegation of the plaintiff that the defendant's insurance carrier, Allstate
Insurance Company, is utilizing the mandatory arbitration program as a method of delay, the court must
examine the statistics compiled by the Discovery Commissioner of Clark County regarding requests for
trial de novo. The Discovery Commissioner of Clark County concluded that in a recent study that Allstate
Insurance Company requests trials de novo in at least 52% of the cases it is involved with. This statistic
raises a question in this court's mind as to whether this percentage constitutes bad faith per se in
violation of Rule 2{A) of the Nevada Arbitration Rules.
stitutes bad faith per se in violation of Rule 2(A) of the Nevada Arbitration Rules.
Thus the district court essentially cited six reasons in support of the determination that Gittings' actions
during the arbitration process did not constitute meaningful participation: (1) Gittings' failure to attend the
arbitration hearing, (2) failure to call any witnesses to testify at the hearing, (3) the length of the hearing and the
amount of time Gittings used to present her issues at the hearing, (4) failure to contest liability, (5) failure to
request an independent medical examination or present any countervailing medical evidence, and (6) the high
percentage of trial de novo requests filed by Gittings' insurer, Allstate, in cases involving Allstate clients.
4

Gittings asserts that the district court erred in striking her request for a trial de novo because she did
participate in good faith in all forms of discovery permitted by the arbitrator as well as the arbitration hearing
itself. Specifically, Gittings argues that she served interrogatories, requested production of documents, and
deposed Hartz, but did not request an independent medical examination of Hartz because the arbitrator
discovery order did not provide for it. Gittings further argues that she did not need to personally attend the
arbitration hearing because liability was not at issue. We agree.
[Headnotes 5, 6]
Mere failure of a party to attend or call witnesses in an arbitration hearing does not amount to bad faith or a
lack of meaningful participation. See Chamberland, 110 Nev. at 705, 877 P.2d at 525. Gittings' decision not to
seriously contest liability at the arbitration hearing or seek an independent medical examination provides
insufficient grounds for completely striking a demand for a trial de novo under Chamberland.
5

There may be many valid reasons why a party would not wish to expend money at the arbitration stage of a
case on medical experts. Effective cross-examination may be sufficient to point out discrepancies in a person's
claim of injury without such testimony, or without presentation of countervailing medical evidence. Without
detailed information on what actually transpired at the hearing, we are left with bare allegations that Gittings did
not defend herself in good faith.
__________

4
Hartz argues that the portion of the district court's order referring to the statistics is mere dictum. However,
the language of the order gives the impression that this issue was a major factor in the district court's decision.

5
Gittings' conduct, however, may be sufficient to support an alternative sanction, such as limiting the issues
to be tried to damages. See NAR 22(B).
Thus four of the six reasons given for the district court's decision cannot be the basis for striking a request for
trial de novo. We are left with the length of the arbitration hearing and the discovery commissioner statistics as
the only factors to be considered in evaluating whether Gittings failed to defend the case in good faith under
NAR 22.
[Headnote 7]
The Court Annexed Arbitration Program is intended to be a simplified, informal procedure to resolve certain
types of civil cases. See NAR 2(A) and (D). It is designed to give the arbitrator a good understanding of the
essential factual disputes and the legal positions of the parties. The decisions issued by the arbitrators, as neutral
fact finders, are intended to promote settlement of cases at an early stage of the proceedings. Thus it is the
substance of the hearing, not its length, that is important in determining the good faith of the participants. A
hearing is meaningless when a party simply goes through the motions and does not seriously attempt to convey
valid objections to the opposing party's evidentiary or legal contentions.
Gittings does not dispute the district court's finding that the entire arbitration proceeding lasted for less than
one hour or that the majority of the hearing involved the direct examination of Hartz by her own counsel.
Instead, Gittings contends that a more extensive cross-examination was not necessary to contest the nature and
extent of Hartz' damages and therefore the brevity of the hearing does not support a finding of bad faith.
[Headnote 8]
Since the arbitration hearing was not recorded or reported and the district court was not supplied with a
statement of the evidence or proceedings similar to statements described in NRAP 9(d), the district court
determined that the hearing was conducted in bad faith solely on the basis of statements contained in the
pleadings of the parties. Under such circumstances, the district court had no factual record to support a
conclusion that Gittings took a lackadaisical approach to the process.
6

[Headnote 9]
Turning to the last issue, the use of statistics, Gittings asserts that the percentage of times that her insurer,
Allstate, requests a trial de novo should not be considered in a determination of whether she participated in good
faith in the arbitration process.
__________

6
If an arbitrator makes detailed factual findings illustrating a lackadaisical attitude, such findings might be
sufficient to support a finding of bad faith even without a transcript of the arbitration hearing or an NRAP 9(d)
type of statement.
Gittings argues that the insurer is not a party to this action and its percentage of requests for trial de novo does
not evidence delay by the insured. In the alternative, Gittings argues that, if an insurer's percentage of requests
for trial de novo can amount to a prima facie showing of bad faith, additional discovery concerning the validity
of the statistics is necessary.
[Headnote 10]
We have recently rejected the notion that the actions of an insurance company cannot be attributed to its
insured when reviewing an arbitration proceeding. See Campbell v. Maestro, 116 Nev. 380, 996 P.2d 412
(2000). Thus, competent statistical information that demonstrates that an insurance company has routinely filed
trial de novo requests without regard to the facts and circumstances of each individual case may be used to
support a claim of bad faith. However, the statistics in this case are incomplete.
While a comparatively high percentage of de novo requests are filed by Allstate, there is no analysis
accompanying the statistics to support a conclusion that the statistics prove that Allstate automatically requests a
trial de novo regardless of the arbitration process. For example, no correlation has been shown between requests
for trial de novo and verdicts for or against the party who filed the request.
Without an evidentiary hearing or a more comprehensive qualitative and quantitative statistical analysis, the
statistics cited by Hartz to the district court were not sufficient to justify termination of proceedings in Hartz'
favor.
7

CONCLUSION
In light of the above, we hereby reverse the district court's order striking the request for trial de novo and
remand this matter to the district court for further proceedings consistent with this opinion.
__________

7
We recognize that the bare statistics create the impression that certain insurance carriers are abusing the
arbitration process, and we would have no problem with supporting the denial of a jury trial if a hearing
produced competent evidence to substantiate such a conclusion. We are not, however, suggesting that an
extensive evidentiary hearing would be necessary in each case. It is conceivable that a detailed statistical
analysis, properly authenticated, could be used in more than one proceeding or that testimony taken in one
hearing might be admissible in other hearings involving the same carrier under the doctrine of collateral
estoppel.
____________
116 Nev. 395, 395 (2000) Olivero v. Lowe
ROBERT LOUIS OLIVERO, Appellant, v. MONTGOMERY LOWE, Respondent.
No. 32485
MONTGOMERY LOWE, Appellant, v. ROBERT LOUIS OLIVERO, Respondent.
No. 32753
March 24, 2000 995 P.2d 1023
Companion appeals in connection with a judgment awarding compensatory and punitive damages entered
following a bench trial on claims of assault, battery, and intentional infliction of emotional distress. Eighth
Judicial District Court, Clark County; Jack Lehman, Judge.
Construction laborer brought action against homeowner, alleging separate causes of action for assault,
battery, and intentional infliction of emotional distress arising out of confrontation at construction site. The
district court awarded laborer compensatory damages totaling $10,000.00, imposed punitive damages in the
amount of $45,000.00, and denied laborer's request for attorney's fees. Homeowner appealed damage award, and
laborer appealed denial of attorney's fees. The supreme court, Maupin, J., held that: (1) laborer physically
attacked and threatened with handgun by homeowner during dispute at construction site was entitled to award of
compensatory damages for emotional distress arising from both assault and battery, (2) trial court's review of
companion criminal proceedings against homeowner did not result in prejudice to homeowner, (3) use of loan
application prepared by homeowner two years prior to trial as evidence of homeowner's net worth for purposes
of calculating punitive damage award was warranted, (4) award of punitive damages in amount of $45,000.00
against homeowner with net worth of $880,000 was not excessive, and (5) laborer was entitled to award of
attorney's fees.
Peccole & Peccole, Las Vegas, for Appellant/Respondent Olivero.
Law Offices of Robert A. Nersesian, Las Vegas, for Respondent/Appellant Lowe.
1. Damages.
To establish a cause of action for intentional infliction of emotional distress, the plaintiff must establish the following: (1) extreme
and outrageous conduct by the defendant with either the intention of, or reckless disregard for, causing emotional distress; (2) the
plaintiff's having suffered severe or extreme emotional distress;
suffered severe or extreme emotional distress; and (3) actual or proximate causation.
2. Damages.
In cases where emotional distress damages are not secondary to physical injuries, but rather precipitate physical symptoms, either a
physical impact must have occurred or, in the absence of physical impact, proof of serious emotional distress causing physical injury or
illness must be presented.
3. Damages.
Construction laborer physically attacked and threatened with handgun by homeowner during dispute at construction site was
entitled to award of compensatory damages for emotional distress arising from both assault and battery, even though laborer required
no medical or psychological treatment, where homeowner struck laborer in face and forced him to work at gunpoint, and laborer had
continued to experience the terror of the incident through extreme nervousness, and had been forced to discontinue his independent
contractor business out of fear of working in unsecure environment.
4. Damages.
The standard of proof for emotional distress damages arising from assault and battery is not as stringent as the standard of proof
requirement for bare claims of intentional or negligent infliction of emotional distress.
5. Appeal and Error; Damages.
It is the function of the trier of fact to award compensatory damages, and it is not the role of the appellate court to substitute its
judgment for that of the trier of fact.
In bench trial of construction laborer's tort action against homeowner, trial court's review of companion criminal proceedings
against homeowner on charges of assault and battery did not result in prejudice to homeowner, where homeowner himself first made
reference to criminal proceeding in his testimony, and court determined, after review of record, that all evidence in regard to criminal
proceeding would be stricken.
7. Trial.
The decision whether to allow or refuse closing argument during a bench trial is entirely within the discretion of the district court.
8. Trial.
Service of copy of blind trial brief upon opposing counsel as trial judge was leaving bench following rendition of his decision was
late. Local rule requires that copy of such brief be filed with opposing counsel at or before the close of trial.
Late service of copy of blind trial brief upon opposing counsel did not compel reversal of verdict rendered in bench trial. Error
would not have affected the outcome of trial.
It is within the province of the fact finder to weigh the evidence, determine the credibility, and act upon such conclusions.
11. Damages.
Use of loan application prepared by homeowner two years prior to trial as evidence of homeowner's net worth for purposes of
calculating punitive damage award for homeowner's assault and battery upon construction laborer,
struction laborer, rather than financial statement prepared by homeowner at time of trial, was warranted, where trial court explicitly
found homeowner's financial statement and testimony to be untruthful and in conflict with loan application.
12. Damages.
Award of punitive damages in amount of $45,000.00 against homeowner with net worth of $880,000.00, in connection with
homeowner's assault and battery upon construction laborer, was not excessive, even though homeowner's assets were held as
community property with his wife.
13. Arbitration.
Construction laborer who was awarded $3,500.00 in damages by arbitrator on his assault and battery claims against homeowner,
and who later received $10,000.00 in compensatory damages and $45,000.00 in punitive damages following bench trial of his claims,
was entitled to mandatory attorney's fees up to $3,000.00.
Construction laborer was not entitled to award of attorney's fees as sanctions against homeowner for failure to admit disputed
substantive facts in connection with laborer's assault and battery claims against homeowner, where requests to admit would have
required homeowner to admit to crucial facts central to the lawsuit.
OPINION
Montgomery Lowe filed suit in district court against Robert Louis Olivero, alleging separate causes of
action for assault, battery, and intentional infliction of emotional distress. Following a bench trial, the
district court awarded Lowe compensatory damages totaling $10,000.00, and imposed punitive damages
in the amount of $45,000.00. On appeal, in Docket No. 32485, Olivero seeks reversal on several grounds:
(1) failure of predicate proof to substantiate any award of compensatory damages; (2) improper review
by the district court of companion criminal proceedings; (3) refusal by the district court to allow closing
argument; (4) Lowe's failure to serve a trial memorandum submitted to the trial judge per EDCR 7.27;
and (5) improper imposition of punitive damages. In Docket No. 32753, Lowe appeals from the district
court's order denying attorney's fees under Nevada Arbitration Rule (NAR) 20 and NRCP 37(c).
FACTS
On July 10, 1994, Olivero appeared at a construction site where he was building a home. Olivero
confronted Lowe, a laborer on the project, about the fact that construction was behind schedule.
schedule. Without apparent provocation, Olivero brandished a handgun and punched Lowe in the face.
According to Lowe, Olivero then pointed the weapon at Lowe's head, threatened to take Lowe's life, and forced
Lowe to dismantle a portion of the completed work.
Lowe claimed at trial that he experienced pain and suffering, contusions and emotional distress as a result of
the physical battery upon him. Additionally, Lowe claimed severe emotional distress as a result of the assault
with the handgun, and being forced to perform labor under threat to his life. Lowe sought no medical or
psychological treatment for the physical and emotional damages claimed in connection with the subject incident.
Both parties participated in court annexed arbitration proceedings. After the arbitrator awarded Lowe
$3,500.00, Olivero requested a trial de novo in district court. See NAR 18 and 20.
Following a bench trial, the district court entered findings of fact and conclusions of law, inter alia, that
Olivero had committed the torts of battery, assault, and intentional infliction of emotional distress. The district
court awarded $5,000.00 on the battery claim, and $5,000.00 in connection with the assault. No additional
damages were awarded on the separate claim of intentional infliction of emotional distress on the theory that the
damages stemming from that claim were included within the assault and battery awards. The district court also
imposed punitive and exemplary damages in the amount of $45,000.00, finding that Olivero had acted with
malice and oppression.
DISCUSSION
Docket No. 32485
Compensatory damages
[Headnotes 1, 2]
Olivero contends that Lowe failed to present sufficient evidence upon which to base an award of
compensatory damages. He places primary reliance on our decision in Barmettler v. Reno Air, Inc., 114 Nev.
441, 956 P.2d 1382 (1998), in which we expanded on our prior decisions discussing independent claims of
emotional distress. In Barmettler, we observed:
To establish a cause of action for intentional infliction of emotional distress, Barmettler must establish
the following:
(1) extreme and outrageous conduct with either the intention of, or reckless disregard for, causing
emotional distress, (2) the plaintiff's having suffered severe or extreme emotional distress and (3) actual
or proximate causation.
Star v. Rabello, 97 Nev. 124, 125, 625 P.2d 90, 91-92 (1981) (citations omitted).
. . . .
Negligent infliction of emotional distress
We first examined negligent infliction of emotional distress for negligent acts committed directly
against a plaintiff in Chowdhry v. NLVH, Inc., 109 Nev. 478, 851 P.2d 459 (1993). In Chowdhry, we
observed:
We have not previously had occasion to decide whether a plaintiff may recover for negligent
infliction of emotional distress for negligent acts committed directly against the plaintiff. In State v.
Eaton, we first recognized a cause of action for negligent infliction of emotional distress where a
bystander suffers serious emotional distress which results in physical symptoms caused by
apprehending the death or serious injury of a loved one due to the negligence of the defendant. The
physical impact requirement has also been applied where, as here, the negligent act is alleged to
have been committed directly against the plaintiff.
. . . .
In the present case, Chowdhry's emotional distress claims are premised upon respondents'
accusations of patient abandonment. Chowdhry testified that as a result, he was very upset and
could not sleep. Insomnia and general physical or emotional discomfort are insufficient to satisfy the
physical impact requirement.
Id. at 482-83, 851 P.2d at 462 (citations omitted). We ultimately embraced this doctrine in Shoen v.
Amerco, Inc., 111 Nev. 735, 748, 896 P.2d 469, 477 (1995).
Barmettler argues that the physical impact requirement is not mandatory in emotional distress claims.
While we agree that emotional overlay claims, as has been the rule for many years, may be brought in
the context of physical injury claims arising from a physical impact, we take this opportunity to clarify
Chowdhry's implication that a physical impact may be required in cases brought under Shoen. We
therefore hold that, in cases where emotional distress damages are not secondary to physical injuries, but
rather, precipitate physical symptoms, either a physical impact must have occurred or, in the absence of
physical impact, proof of serious emotional distress causing physical injury or illness must be
presented.
Id. at 447-48, 956 P.2d at 1386-87.
[Headnote 3]
Lowe argues that there was a sufficient showing of damages under Barmettler, particularly given the physical
impact proved with regard to the battery claim. Lowe further argues that Barmettler should not be read so as to
outright deny emotional distress claims stemming from a bare assault. We take this opportunity to clarify and
limit the scope of our ruling in Barmettler. Although Lowe required no medical or psychological treatment, we
conclude that the district court properly awarded Lowe compensatory damages arising from both the assault and
the battery.
[Headnote 4]
First, there was a physical impact that provided the objective predicate for personal injury and emotional
distress recovery in connection with the battery claim. Second, the nature of a claim of assault is such that the
safeguards against illusory recoveries mentioned in Barmettler and Chowdhry are not necessary. Third, claims
for assault and battery provide the outer limits of extreme outrage. Thus, an assault, a tort that does not require a
physical impact, is in and of itself a predicate for an award of nominal or compensatory damages without proof
of serious emotional distress. Thus, the standard of proof for emotional distress damages arising from assault
and battery is not as stringent as the standard of proof requirement for bare claims of intentional or negligent
infliction of emotional distress. See Harrison v. Mitchell, 391 So. 2d 1038, 1040 (1980) (holding that a jury may
award nominal or compensatory damages for an assault where the only injury was insult, indignity, hurt feelings,
mental suffering and fright caused by the assault) (citing Republic Iron & Steel Co. v. Self, 68 So. 328 (1915));
see also Restatement (Second) of Torts 46 cmt. k (1986);
1
W. Page Keeton et al., Prosser and Keeton on the
Law of Torts (5th ed. 1984 & Supp. 1988); compare W. Page Keeton et al., Prosser and Keeton on the Law of
Torts 10, at 43 (5th ed. 1984 & Supp. 1988), Assault (since assault . . . is essentially a mental rather than a
physical invasion, it follows that the damages recoverable for it are those for mental disturbance, . . . as well as
any physical illness) with Keeton et al., 12, at 64, Infliction of Mental Distress ([a] few cases have said
flatly that physical illness or some other nonmental damage is essential to the existence
of the tort [IIED]").
__________

1
Restatement (Second) of Torts 46 cmt. k states:
The rule stated is not, however, limited to cases where there has been bodily harm; and if the conduct is
sufficiently extreme and outrageous, there may be liability for the emotional distress alone, without such
harm. In such cases the courts may perhaps tend to look for more in the way of outrage as a guarantee
that the claim is genuine; but if the enormity of the outrage carries conviction that there has been severe
emotional distress, bodily harm is not required.
flatly that physical illness or some other nonmental damage is essential to the existence of the tort [IIED]).
Lowe testified that he still experiences the terror of the incident through extreme nervousness, and that he has
been forced to discontinue his independent contractor business out of fear of working in an unsecure
environment.
[Headnote 5]
It is the function of the trier of fact to award compensatory damages, and it is not the role of the appellate
court to substitute its judgment for that of the trier of fact. See Villella v. Waikem Motors, Inc., 543 N.E.2d 464,
469 (Ohio 1989). There is no evidence to indicate that the damage awards to Lowe were excessive. Certainly the
circumstances at issue were extreme enough to stimulate the extent of emotional distress described. Therefore,
we conclude that the compensatory awards totaling $10,000.00 were not excessive.
2

Companion criminal proceedings
[Headnote 6]
Olivero was charged in separate criminal proceedings with misdemeanor assault and battery. He contends
that a review of the companion criminal proceedings against him by the district court deprived him of a fair
trial. However, it was Olivero's attorney who first made reference to the criminal proceedings:
Q. [Peccole] Sir, you [Olivero] testified thatwere you charged with anything as a result of this
incident?
A. [Olivero] Yes. I was charged with, I think assault and battery and aiming a weapon.
Q. And what were the results of those charges?
A. They were dismissed and I wasI had to pay a thousand dollar donation.
It was only after Olivero's response, which Lowe argues was not accurate, that the district court elected to
review the entire criminal record. After viewing the record, the district court determined that all evidence in
regard to Olivero's criminal case would be stricken.
We conclude that Olivero was not harmed by the review of the companion criminal proceedings. In a jury
trial, the judge's withdrawal of evidence coupled with a cautionary instruction would have cured any error.
__________

2
We also conclude that the separate claim for intentional infliction of emotional distress was rendered moot,
given that the emotional damages were subsumed within the damages awarded in connection with the claims of
assault and battery. Thus, we need not address the Barmettler requirements as they relate to the separate cause
of action for emotional distress.
have cured any error. See State v. Heisdorffer, 164 N.W.2d 173, 176 (Iowa 1969). In the absence of a jury, the
district judge was certainly able to resolve the matter without considering the excluded criminal record.
Refusal to allow closing argument
[Headnote 7]
Olivero contends that the district court erred in refusing his request to present closing arguments. The
decision whether to allow or refuse closing argument during a bench trial is entirely within the discretion of the
district court. See Gunn v. Superior Court, 173 P.2d 328 (Cal. 1946). Thus, we conclude that the district court
did not err in refusing Olivero's request in this regard.
Blind trial memoranda
[Headnote 8]
Early in the proceedings, counsel for Lowe lodged a blind trial brief with the district court under EDCR
7.27.
3
Because Lowe provided a copy of the trial memorandum to Olivero's counsel as the judge was leaving
the bench following the rendition of his decision, Olivero claims that Lowe violated EDCR 7.27.
[Headnote 9]
We conclude that service of the trial memorandum was late. However, this error in the proceedings does not
compel reversal because the error would not have affected the outcome of the trial. See El Cortez Hotel, Inc. v.
Coburn, 87 Nev. 209, 484 P.2d 1089 (1971); NRCP 61.
Punitive damages
Olivero also contends that the district court erred in its award of punitive damages. More particularly,
Olivero claims that the district court failed to take into account Olivero's financial position at the time of trial in
1998, used the value of community property as proof of Olivero's net worth, and awarded the punitive damages
under the influence of passion and prejudice.
We conclude that the district court did not fail to take into consideration Olivero's current financial position
as of the date of trial.
__________

3
Eighth Judicial District Court Rule 7.27 states:
Unless otherwise ordered by the court, an attorney may elect to submit to the court in any civil case, a
trial memoranda of points and authorities prior to the commencement of trial by delivering one unfiled
copy to the court, without serving opposing counsel or filing the same, provided that the original trial
memoranda of points and authorities must be filed and a copy must be served upon opposing counsel at
or before the close of trial.
trial. The district court chose to rely upon a 1996 loan application prepared by Olivero, rather than a financial
statement provided by Olivero dated March 28, 1998. The district judge found Olivero's 1998 financial
statement to be untruthful and observed that Olivero was one of the least credible witnesses he had ever heard
testify in his court.
[Headnotes 10, 11]
The record supports the district court's conclusions in this regard. Olivero testified at trial to a net worth of
between $150,000.00 and $200,000.00. This was in direct conflict with the 1998 financial statement he
submitted, and in direct conflict with his testimony that the only financial setback encountered between 1996 and
1998 totaled some $400,000.00. This and other discrepancies rendered relevant the earlier statement of net
worth. It is within the province of the fact finder to weigh the evidence, determine the credibility, and act upon
such conclusions. See Paul Andre B. v. State, 108 Nev. 368, 371, 830 P.2d 1344, 1346 (1992). Here, the prior
loan application contained competent evidence demonstrating Olivero's net worth. Further, as noted below, the
district court imposed these damages with an understanding that the 1996 net worth of 1.3 million dollars could
be reduced by an amount in excess of the $400,000.00 financial reversal. Thus, the district court acted well
within its discretion in rejecting Olivero's evidence on this point. See Ramada Inns v. Sharp, 101 Nev. 824, 826,
711 P.2d 1, 2 (1985) (holding that the allowance or denial of punitive damages rests entirely in the discretion of
the trier of fact).
[Headnote 12]
We also conclude that the district court recognized that Olivero's net worth included community property. In
reaching its decision the district court found that the appropriate amount of punitive damages under this case,
even if it [sic] is community property, is $45,000. Additionally, the judgment below specifically provides that
Olivero has a net worth, held in community property with his wife, of at least $880,000. We conclude that,
assuming Olivero's portion of the community estate was half the $880,000.00 amount, the punitive award was
not excessive. Therefore, it is clear that the district court took into account the appropriate portion of Olivero's
net worth after deducting the $400,000.00 financial reversal, and excluding his wife's interest in their community
estate, in its award of punitive damages.
We conclude that Olivero failed to demonstrate that the punitive damages were awarded under the influence
of passion or prejudice. Further, the only evidence Olivero offers for support is that the district court asked him
additional questions and threatened him with contempt if he continued to fail to bring required
documents.
him with contempt if he continued to fail to bring required documents. This evidence is insufficient to
demonstrate that the district court was somehow prejudiced against Olivero. Finally, the totality of the evidence
against Olivero, which the district court had the discretion to accept, demonstrated an outrageous and ill-advised
exercise of physical domination over a person who was only trying to explain delays in the construction of
Olivero's construction project.
Docket No. 32753
[Headnote 13]
In his separate appeal, Lowe contends that he was entitled to attorney's fees under NAR 20(A), which states:
Except as otherwise provided in this subsection, if the amount of the award in the trial de novo does not .
. . reduce the liability imposed on [the party requesting trial de novo] by the arbitration award, the party
requesting the trial de novo must pay to the adverse parties all . . . actual attorney's fees associated with
the prosecution . . . of the trial de novo. Awards of attorney's fees may not exceed the total amount of
$3,000 unless the court finds extraordinary circumstances justifying a higher award.
(Emphasis added.) The arbitrator awarded Lowe $3,500.00 in damages. Thereafter, the district court entered
judgment in favor of Lowe totaling $10,000.00 in compensatory damages and $45,000.00 in punitive damages.
We therefore conclude that Lowe was entitled to mandatory attorney's fees up to $3,000.00 under NAR 20
because Olivero clearly failed to improve upon the arbitration award. This award is independent of NRS
18.010(2)(a), which precludes fees under that provision where the recovery, exclusive of costs, exceeds
$20,000.00. See Barmettler, 114 Nev. at 452, 956 P.2d at 1389.
[Headnote 14]
Lowe also contends that the district court abused its discretion in denying Lowe's request for attorney's fees
as sanctions under NRCP 37(c) for failure to admit disputed substantive facts in connection with the parties'
confrontation on July 10, 1994. NRCP 37(c) provides:
If a party fails to admit . . . the truth of any matter as requested under Rule 36, and if the party requesting
the admissions thereafter proves . . . the truth of the matter, he may apply to the court for an order
requiring the other party to pay him the reasonable expenses incurred in making that proof, including
reasonable attorney's fees. The court shall make the order unless it finds that there was good
reason for the failure to admit.
make the order unless it finds that there was good reason for the failure to admit.
We conclude there was no error in the district court's refusal to sanction Olivero under NRCP 37(c). Lowe's
requests to admit required Olivero to admit to crucial facts central to the lawsuit. See Morgan v. Demille, 106
Nev. 671, 675, 799 P.2d 561, 564 (1990) (holding that NRCP 36 is designed to elicit admissions of fact as to
which there is no real dispute and which the adverse party can admit cleanly, without qualification).
We have reviewed all other contentions brought forth in these appeals and determine them to be without
merit.
Based on the foregoing discussion, we reverse the district court's order denying appellant attorney's fees and
remand this order to the district court for entry of an award of attorney's fees under NAR 20. In all other
respects, the judgment below is affirmed.
____________
116 Nev. 405, 405 (2000) Kindred v. Dist. Ct.
ROBIN KINDRED, an Individual, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for THE COUNTY OF WASHOE, and THE HONORABLE PETER I.
BREEN, District Judge, Respondents, and A. G. EDWARDS, a Missouri Corporation Doing Business
in the State of Nevada; and RUSS BISHOP, an Individual, Real Parties in Interest.
No. 34084
April 5, 2000 996 P.2d 903
Original petition for a writ of mandamus or, in the alternative, a writ of prohibition challenging the district
court's order compelling arbitration. Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Investment broker sued her employer, alleging numerous claims, including sexual harassment and/or
discrimination under Title VII and its state equivalent, and a breach of the Family and Medical Leave Act
(FMLA). The district court ruled that all of broker's claims were subject to arbitration. Broker petitioned for a
writ of mandamus or, in the alternative, a writ of prohibition. The supreme court held that: (1) mandamus was a
proper method to challenge an order compelling arbitration, and (2) claims under Title VII and under the
Family and Medical Leave Act {FMLA) were arbitrable.
Title VII and under the Family and Medical Leave Act (FMLA) were arbitrable.
Petition denied.
Jack E. Kennedy & Associates, Reno, for Petitioner.
Schreck Morris and Ann Morgan and John P. Desmond, Reno, for Real Parties in Interest.
1. Mandamus.
Writ of mandamus was a proper method to challenge an order compelling arbitration. NRS 34.170, 38.205.
2. Prohibition.
District court acted within its jurisdiction when it heard employer's motion to compel arbitration of employee's claims
under Title VII and its state equivalent, and under the Family and Medical Leave Act (FMLA), and thus, a writ of prohibition
was inapplicable. Family and Medical Leave Act of 1993, 107(a)(2), 29 U.S.C. 2617(a)(2); Civil Rights Act of 1964,
703(a)(1), as amended, 42 U.S.C. 2000e-2(a)(1); NRS 34.320, 613.330(1).
3. Arbitration.
State anti-discrimination statutes are a part of Title VII's enforcement scheme, and thus, claims under the state statute are
arbitrable to the same extent as Title VII claims. Civil Rights Act of 1964, 701 et seq., as amended, 42 U.S.C. 2000e et seq.;
NRS 613.330(1).
4. Exchanges.
Investment broker's claims against her employer under Title VII and its state equivalent, and under the Family and
Medical Leave Act (FMLA), were arbitrable. Family and Medical Leave Act of 1993, 107(a)(2), 29 U.S.C. 2617(a)(2); Civil
Rights Act of 1964, 703(a)(1), as amended, 42 U.S.C. 2000e-2(a)(1); NRS 613.330(1).
5. Mandamus.
Writ of mandamus is available to compel the performance of an act which the law requires as a duty resulting from an
office, trust, or station, or to control an arbitrary or capricious exercise of discretion. NRS 34.160.
6. Mandamus.
Mandamus is an extraordinary remedy, and it is within the discretion of supreme court to determine if a petition will be
considered. NRS 34.170.
7. Arbitration.
In reviewing arbitration agreements, the issue of whether a dispute is arbitrable is essentially a question of construction of
a contract, and as such, the reviewing court is obligated to make its own independent determination on this issue, and should
not defer to the district court's determination.
8. Arbitration.
In determining whether to compel arbitration of federal statutory claims, court examines: (1) whether the parties have
made an agreement to arbitrate, (2) the scope of the agreement, and (3) whether the federal statutory claims are arbitrable.
9. Exchanges.
Arbitration clause in the form signed by employee was valid, despite her claim that it was an invalid adhesion contract, that the
failure to sign the form would have barred her employment, and that she did not understand the implications of the arbitration clause.
10. Contracts.
Adhesion contract is a standardized contract form offered to consumers of goods and services essentially on a take it or leave
it basis, without affording the consumer a realistic opportunity to bargain.
11. Arbitration.
In judging the scope of the arbitration agreements, supreme court resolves all doubts concerning the arbitrability of the subject
matter of a dispute in favor of arbitration.
12. Arbitration.
Supreme court is hesitant to deprive the parties of the benefits of arbitration they have bargained for, and arbitration clauses are to
be construed liberally in favor of arbitration.
13. Courts.
Where the federal circuits are in conflict, the authority of the Ninth Circuit is entitled to no greater weight than decisions of other
circuits.
14. Arbitration.
By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to
their resolution in an arbitral, rather than a judicial, forum.
OPINION
Per Curiam:
Before beginning her employment with A.G. Edwards & Sons (Edwards), petitioner Robin Kindred
(Kindred) completed and signed two separate agreements. Both agreements contained an arbitration
clause that required Kindred to arbitrate any disputes related to her employment. Kindred later filed a
complaint in the district court. Edwards sought to compel arbitration, and the district court ruled that all of
Kindred's claims were subject to arbitration. For the reasons discussed herein, we conclude that Kindred
appropriately seeks relief from this court by a writ of mandamus. Based on the two separate arbitration
agreements, we further conclude that Kindred's Title VII claim and her Family and Medical Leave Act claim
are subject to arbitration. We therefore deny extraordinary relief.
FACTS
In October 1995, Edwards hired Kindred as an investment broker. Kindred's job responsibilities required
that she register with the National Association of Securities Dealers, Inc. {"NASD").
(NASD). Consequently, Kindred completed and signed a Uniform Application for Securities Industry
Registration or Transfer Form (U-4 Form).
The U-4 Form contains an arbitration provision. Specifically, the form states in paragraph five:
I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a
customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of
the organizations indicated in item 10 as may be amended from time to time and that any arbitration
award rendered against me may be entered as a judgment in any court of competent jurisdiction.
Item 10 identifies the NASD as one of the licensing organizations.
Pursuant to paragraph five of the U-4 Form, Section 10101 of the NASD Code of Arbitration Procedure
states, in relevant part:
This Code of Arbitration Procedure is prescribed and adopted . . . for the arbitration of any dispute,
claim, or controversy arising out of or in connection with the business of any member of the Association,
or arising out of the employment or termination of employment of associated person(s) with any member.
Edwards is a member of the NASD. Under Section 10201, any dispute involving a member or a person
associated with a member against another member or a person associated with a member shall be arbitrated
under this Code.
In addition, Kindred completed and signed Edwards' Investment Broker Agreement.
1
This second
agreement also contains an arbitration clause. Paragraph twenty-six of that agreement states:
You agree that any controversy or dispute arising between you and Edwards in any respect to this
agreement or your employment by Edwards shall be submitted for arbitration before the New York Stock
Exchange, Inc., or the National Association of Securities Dealers, Inc.
On November 6, 1998, Kindred filed a complaint in the district court alleging numerous claims, including
sexual harassment and/or discrimination under Title VII
2
and its Nevada equivalent, and a breach of the Family
and Medical Leave Act (FMLA). Edwards subsequently informed Kindred that her claims were subject to
arbitration and that Edwards elected to pursue arbitration before the NASD.
__________

1
Kindred failed to disclose the existence of this second agreement and did not discuss its relevance to the
issues involved in her petition.

2
Portions of the Civil Rights Act of 1964 are commonly referred to as Title VII. See 42 U.S.C. 2000e to
2000e-17 (1994).
ject to arbitration and that Edwards elected to pursue arbitration before the NASD. Nevertheless, Kindred
refused to submit to arbitration.
Accordingly, Edwards filed a motion to compel arbitration in the district court. On March 4, 1999, the
district court ruled that all of Kindred's claims were subject to arbitration before the NASD under both Nevada
and relevant United States Supreme Court case law. Kindred has now filed a petition for a writ of mandamus or
prohibition, challenging the district court order compelling arbitration.
DISCUSSION
[Headnote 1]
As a threshold issue, we must first consider whether a writ of mandamus or prohibition is the proper method
to challenge an order compelling arbitration.
[Headnotes 2, 3]
The Uniform Arbitration Act (UAA) governs arbitration agreements in Nevada. See NRS 38.015-38.205.
In particular, NRS 38.205 specifies the types of orders relating to arbitration from which an appeal may be
taken. An order compelling arbitration is not listed [in NRS 38.205] as being subject to appeal, and is therefore
not appealable. Clark County v. Empire Electric, Inc., 96 Nev. 18, 19, 604 P.2d 352, 353 (1980); see also NRS
38.205. We may issue a writ of mandamus where there is not a plain, speedy and adequate remedy in the
ordinary course of law. NRS 34.170. Under these circumstances, we conclude that Kindred has no remedy
available other than that provided by a writ. See NRS 38.205; Empire Electric, 96 Nev. at 19, 604 P.2d at 353.
Moreover, other states recognize that a writ of mandamus is the proper method to challenge an order compelling
arbitration. See Ex Parte Alexander, 558 So. 2d 364 (Ala. 1990); Banner Entertainment, Inc. v. Superior Court,
72 Cal. Rptr. 2d 598 (Ct. App. 1998); Bertero v. Superior Court, 30 Cal. Rptr. 719 (Ct. App. 1963).
Accordingly, we conclude that Kindred appropriately seeks extraordinary relief by way of a writ of mandamus in
this case.
3

__________

3
Alternatively, Kindred seeks a writ of prohibition. A writ of prohibition may be issued when the district
court acts in excess of its jurisdiction. See NRS 34.320. Kindred never discusses the applicability of a writ of
prohibition in this case, but apparently argues that the district court exceeded its jurisdiction by ruling on the
arbitrability of her Title VII and FMLA claims. However, NRS 613.330(1) is Nevada's equivalent to Title VII
and is almost identical to section 2000e-2(a)(1) of Title VII. See 42 U.S.C. 2000e-2(a)(1) (1994). Furthermore,
because state anti-discrimination statutes are a part of Title VII's enforcement scheme, claims under NRS
613.330(1) are arbitrable to the same extent as Title VII claims. See Kremer v. Chemical Construction
[Headnote 4]
Kindred argues that her Title VII and FMLA claims are not arbitrable. Although Kindred concedes that her
other claims are subject to binding arbitration, she nonetheless seeks to sever her Title VII and FMLA claims
from arbitration. We conclude that Kindred's argument is without merit.
[Headnotes 5, 6]
A writ of mandamus is available to compel the performance of an act which the law requires as a duty
resulting from an office, trust, or station, or to control an arbitrary or capricious exercise of discretion. See NRS
34.160; Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). Mandamus is an
extraordinary remedy, and it is within the discretion of this court to determine if a petition will be considered.
See State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983); see also Poulos v.
District Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982).
[Headnote 7]
Moreover, in reviewing arbitration agreements, the issue of [w]hether a dispute is arbitrable is essentially a
question of construction of a contract. Clark Co. Public Employees v. Pearson, 106 Nev. 587, 590, 798 P.2d
136, 137 (1990). As such, the reviewing court is obligated to make its own independent determination on this
issue, and should not defer to the district court's determination. Id.
[Headnote 8]
In determining whether to compel arbitration of federal statutory claims, we examine: (1) whether the
parties have made an agreement to arbitrate; (2) the scope of the agreement; and (3) whether the federal
statutory claims are arbitrable. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614,
626-27 (1984); see also Genesco, Inc. v. T. Kakiuchi & Co., Ltd., 815 F.2d 840, 844 (2d Cir. 1987).
[Headnote 9]
First, it is undisputed that Kindred completed and signed two separate arbitration agreements. Nonetheless,
Kindred asserts that the arbitration clause in the U-4 Form is invalid as an adhesion contract.
__________
Corp., 456 U.S. 461, 477 (1982). Conversely, Nevada does not have an equivalent to the FMLA. Yet, the FMLA
provides that [a]n action to recover the damages or equitable relief prescribed in paragraph (1) may be
maintained against any employer (including a public agency) in any Federal or State court of competent
jurisdiction. See 29 U.S.C. 2617(a)(2) (1999). Accordingly, we conclude that the district court acted within
its jurisdiction when it heard Edwards' motion to compel arbitration. Therefore, a writ of prohibition is
inapplicable in this case.
the arbitration clause in the U-4 Form is invalid as an adhesion contract. Without citing to any evidence, Kindred
asserts that the failure to sign the agreement would have barred her employment with Edwards and that she did
not understand the implications of the arbitration clause.
[Headnote 10]
An adhesion contract is a standardized contract form offered to consumers of goods and services essentially
on a take it or leave it' basis, without affording the consumer a realistic opportunity to bargain. Obstetrics and
Gynecologists v. Pepper, 101 Nev. 105, 107, 693 P.2d 1259, 1260 (1985). We have never applied the adhesion
contract doctrine to employment cases. Moreover, we have held that [p]arties to a written arbitration agreement
are bound by its conditions regardless of their subjective beliefs at the time the agreement was executed.
Campanelli v. Conservas Altamira, S.A., 86 Nev. 838, 841, 477 P.2d 870, 872 (1970). For these reasons, we
conclude that Kindred's argument is meritless and that she entered into two valid arbitration agreements.
[Headnotes 11, 12]
Second, in judging the scope of the arbitration agreements, we resolve all doubts concerning the
arbitrability of the subject matter of a dispute in favor of arbitration. Int'l Assoc. Firefighters v. City of Las
Vegas, 104 Nev. 615, 618, 764 P.2d 478, 480 (1988). In fact, we have observed that the purpose of the UAA is
to prevent courts from intervening when a provision for arbitration has been contractually provided by the
parties. Phillips v. Parker, 106 Nev. 415, 417, 794 P.2d 716, 718 (1990). Therefore, we are hesitant to deprive
the parties of the benefits of arbitration they have bargained for, and arbitration clauses are to be construed
liberally in favor of arbitration. Id.
In the present matter, the plain language of both arbitration provisions is very broad. The U-4 Form states
that any dispute, claim or controversy that may arise between me and my firm must be arbitrated. The second
arbitration agreement provides that any controversy or dispute arising between you and Edwards in any
respect to this agreement or your employment by Edwards shall be submitted for arbitration. Because of the
broad language of both arbitration clauses and the fact that Nevada overwhelmingly favors arbitration, we
conclude that the scope of the arbitration agreements appears to include all employment related claims.
However, the crux of Kindred's argument focuses on the third element of whether her Title VII and FMLA
claims are subject to arbitration.
arbitration. The resolution of this issue requires a separate and closer examination of applicable federal case law.
In several cases, the United States Supreme Court has addressed the conflict between arbitration agreements
and federal statutory rights. In Alexander v. Gardner-Denver Co., 415 U.S. 36, 59-60 (1974), the Court held that
an arbitration agreement under a collective bargaining agreement does not preclude separate litigation of a Title
VII claim. However, in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 35 (1991), the Court distinguished
Gardner-Denver by holding that claims under the Age Discrimination in Employment Act of 1967 (ADEA)
can be subject to individual agreements to arbitrate.
4
Importantly, the ADEA and Title VII are both federal
anti-discrimination statutes. In fact, Gilmer involved the same type of U-4 Form at issue in the instant case. In
addition, the Court ruled that [h]aving made the bargain to arbitrate, the party should be held to it unless
Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.'
See Gilmer, 500 U.S. at 26 (quoting Mitsubishi Motors Corp., 473 U.S. at 628). In making this determination,
the Court looked to the language of the statute, its legislative history, and whether a conflict between the statute's
goals and arbitration existed. See id.
After a careful review of Title VII, we conclude that the language of Title VII does not expressly preclude
arbitration. See Austin v. Owen-Brockway Glass Container, Inc., 78 F.3d 875, 881 (4th Cir. 1996) (holding that
the plain language of Title VII means Congress is in favor of arbitration). In fact, the plain language of Title
VII evinces approval of arbitration as a means to resolve Title VII claims. The Civil Rights Act of 1991
5
provides:
Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution,
including . . . arbitration, is encouraged to resolve disputes arising under the Acts or provisions of Federal
law amended by this title.
__________

4
Recently, in Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998), the Court held that a general
arbitration clause in a collective bargaining agreement did not require arbitration of an alleged violation of the
Americans with Disabilities Act. However, the Court distinguished Gilmer by noting that Gilmer involved an
individual's waiver of his own rights, rather than a union's waiver of the rights of represented employees. See
Wright, 525 U.S. at 80-81. Additionally, the Court stated, We take no position, however, on the effect of this
provision in cases where a [collective bargaining agreement] clearly encompasses employment discrimination
claims, or in areas outside collective bargaining. Id. at 82 n.2 (emphasis added). Accordingly, we conclude that
Wright is inapposite to this case.

5
The Civil Rights Act of 1991 amended Title VII, in part. See Pub. L. No. 102-166, 105 Stat. 1071 (1991).
Civil Rights Act of 1991, Pub. L. No. 102-166, 118, 105 Stat. 1071, 1081 (1991). In addition, we note that the
legislative history of Title VII is ambiguous regarding Congress' position on arbitration because it contains
statements supporting the arbitration of Title VII claims and statements criticizing it. See, e.g., 137 Cong. Rec.
S15,472-501, S15,478 (daily ed. Oct. 30, 1991) (statement of Sen. Dole); H.R. Rep. No. 101-485(III), at 76-77
(1990), reprinted in 1990 U.S.C.C.A.N. 445, 499-500. Due to the ambiguous nature of Congress' position, we
conclude that the legislative history of Title VII is insufficient to overcome the presumption in favor of
arbitration which Gilmer establishes. Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, 170 F.3d 1, 10 (1st
Cir. 1999). Moreover, we further conclude that Title VII's goals are not undermined by arbitration because an
individual may still vindicate his or her rights under Title VII in arbitration proceedings. See id. at 11.
Furthermore, eleven of the twelve federal circuit courts of appeals have addressed the issue of whether Title
VII claims are arbitrable. Ten of those eleven federal circuit courts of appeals hold that Title VII claims are
subject to arbitration.
6
Only the Ninth Circuit has arrived at the opposite conclusion. See Duffield v. Robertson
Stephens & Co., 144 F.3d 1182 (9th Cir. 1998), cert. denied, 119 S. Ct. 445 (1998).
[Headnote 13]
In Duffield, the Ninth Circuit held that an arbitration provision in a U-4 Form was unenforceable. The Ninth
Circuit ruled that the text of Title VII and its legislative history showed that Congress intended to preclude
compulsory arbitration of Title VII claims. Duffield, 144 F.3d at 1199. However, we conclude that Duffield is
distinguishable from the instant matter. Here, Kindred signed a second arbitration agreement in addition to the
arbitration provision in the U-4 Form. The language in the second arbitration agreement is even broader than the
language in the U-4 Form. Moreover, the Ninth Circuit's interpretation of Title VII conflicts with the
interpretation of ten other federal circuit courts of appeals.
__________

6
See Rosenberg, 170 F.3d at 1; Koveleskie v. SBC Capital Markets, Inc., 167 F.3d 361 (7th Cir. 1999), cert.
denied, 120 S. Ct. 44 (1999); Seus v. John Nuveen & Co., Inc., 146 F.3d 175 (3d Cir. 1998), cert. denied, 119 S.
Ct. 1028 (1999); Paladino v. Avnet Computer Technologies, Inc., 134 F.3d 1054 (11th Cir. 1998); Patterson v.
Tenet Healthcare, Inc., 113 F.3d 832 (8th Cir. 1997); Cole v. Burns Intern. Security Services, 105 F.3d 1465
(D.C. Cir. 1997); Austin, 78 F.3d at 875; Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482
(10th Cir. 1994); Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305 (6th Cir. 1991); Alford v. Dean Witter
Reynolds, Inc., 939 F.2d 229 (5th Cir. 1991). Though the Second Circuit has yet to address the issue, all the
federal district courts in the Second Circuit are unanimous in holding that Title VII claims are arbitrable. See,
e.g., Pitter v. Prudential Life Ins. Co. of America, 906 F. Supp. 130, 139 (E.D.N.Y. 1995).
conflicts with the interpretation of ten other federal circuit courts of appeals. Where the federal circuits are in
conflict, the authority of the Ninth Circuit . . . is entitled to no greater weight than decisions of other circuits.
Elliot v. Albright, 257 Cal. Rptr. 762, 765 (Ct. App. 1989). For the foregoing reasons, we conclude, as did
nearly all the federal circuit courts of appeals, that Congress has not expressly precluded Title VII claims from
being subject to arbitration. Accordingly, we conclude that Kindred's Title VII claim is arbitrable.
Similarly, several courts have held that FMLA claims are subject to arbitration. See, e.g., O'Neil v. Hilton
Head Hosp., 115 F.3d 272, 274 (4th Cir. 1997); Smith v. CPC Foodservice, 955 F. Supp. 84, 86 (N.D. Ill.
1997); Reese v. Commercial Credit Corp., 955 F. Supp. 567, 570 (D. S.C. 1997). Moreover, Satarino v. A.G.
Edwards & Sons, Inc., 941 F. Supp. 609 (N.D. Tex. 1996), is remarkably similar to the instant case. In Satarino,
the plaintiff signed both the U-4 Form and the Investment Broker Agreement. The Satarino court concluded
that the arbitration provisions in both agreements were sufficiently broad to include an FMLA claim. See id. at
613. In addition, the court utilized the Gilmer analysis of examining the text of the FMLA and its legislative
history, while also examining whether the FMLA's goals are compatible with arbitration. Ultimately, the court
held that the FMLA contains nothing to suggest that agreements to arbitrate are unenforceable . . . [a]nd
Satarino has not pointed the court to legislative history to support such a conclusion, or to an inherent conflict
between the FMLA and arbitration. Id.
We conclude that the Satarino court's analysis is persuasive, especially in light of the fact that Congress
could have precluded FMLA claims from being subject to arbitration. Because Congress enacted the FMLA well
after Gilmer in 1993, Congress had the opportunity to preclude the arbitrability of FMLA claims, but did not do
so. See 29 U.S.C. 2601 (1999); Smith, 955 F. Supp. at 86. For these reasons, we conclude, as did the Satarino
court, that Congress has not precluded FMLA claims from being subject to arbitration. Accordingly, we
conclude that Kindred's FMLA claim is also arbitrable.
[Headnote 14]
Finally, it is important to note that [b]y agreeing to arbitrate a statutory claim [such as a Title VII or FMLA
claim], a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in
an arbitral, rather than a judicial, forum. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S.
614, 628 (1984). Thus, Kindred still retains the opportunity to present her Title VII and FMLA claims to an
arbitrator, just not to a jury.
Accordingly, we conclude that extraordinary relief is not warranted in this case because the district court did
not abuse its discretion in concluding that both Kindred's Title VII and FMLA claims are arbitrable. We
therefore deny Kindred's petition for a writ of mandamus or prohibition.
7

____________
116 Nev. 415, 415 (2000) LaForge v. State, University System
LAURENCE E. LaFORGE, Appellant, v. THE STATE OF NEVADA, as the UNIVERSITY AND
COMMUNITY COLLEGE SYSTEM OF NEVADA; UNIVERSITY OF NEVADA, RENO; and
BOARD OF REGENTS OF THE UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF
NEVADA, Respondents.
No. 32814
LAURENCE E. LaFORGE, Appellant, v. THE STATE OF NEVADA, as the UNIVERSITY AND
COMMUNITY COLLEGE SYSTEM OF NEVADA; UNIVERSITY OF NEVADA, RENO; and
BOARD OF REGENTS OF THE UNIVERSITY AND COMMUNITY COLLEGE SYSTEM OF
NEVADA, Respondents.
No. 33397
April 5, 2000 997 P.2d 130
Consolidated appeals from a district court order granting a motion for summary judgment based on issue
preclusion and a district court order awarding attorney's fees. Second Judicial District Court, Washoe County;
Janet J. Berry, Judge.
Non-tenured university professor brought action against university over the termination of his employment,
asserting claims for breach of contract, breach of covenant of good faith and fair dealing, and negligent
supervision. After professor's federal action against university was dismissed, university moved for summary
judgment on basis of issue preclusion. The district court granted summary judgment in favor of university and
awarded university attorney's fees and costs. Professor appealed. The supreme court held that: (1) doctrine of
issue preclusion barred professor's state action, (2) university did not breach professor's employment contract,
and (3) district court was within its discretion in awarding university attorney's fees pursuant to offer of
judgment rule.
Affirmed.
__________

7
We hereby vacate our order of February 16, 2000, staying the arbitration proceedings in this matter.
Paul G. Yohey, Reno, for Appellant.
Mary Phelps Dugan, Reno, for Respondents.
An order granting summary judgment is reviewed de novo.
2. Judgment.
Issue preclusion, or collateral estoppel, is a proper basis for granting summary judgment.
3. Judgment.
The general rule of issue preclusion is that if an issue of fact or law was actually litigated and determined by a valid and final
judgment, the determination is conclusive in a subsequent action between the parties.
4. Judgment.
The doctrine of issue preclusion provides that any issue that was actually and necessarily litigated in first case will be estopped
from being relitigated in subsequent case.
5. Judgment.
Unlike claim preclusion, issue preclusion does not apply to matters which could have been litigated but were not.
6. Judgment.
Doctrine of issue preclusion barred professor's state action against university for breach of employment contract for university's
alleged failure to follow required personnel procedures in terminating professor, where common issue of whether university did what it
was obligated to do in terminating professor was litigated and determined by valid and final judgment in professor's federal action
against university, identical facts supported both federal and state actions, and professor conceded that he used same arguments on
appeal in state case as he used in response to motion to dismiss federal case.
7. Judgment.
Issue preclusion may apply even though the causes of action are substantially different, if the same fact issue is presented.
8. Judgment.
Federal judgment in favor of university in professor's action for alleged violations of his constitutional rights relating to
university's termination of his employment would be accepted by state supreme court as valid in professor's state action against
university for breach of his employment contract, pursuant to presumption that a judgment is valid if it is regular on its face, absent
any indication of federal appeal and subsequent reversal of federal court's findings.
9. Colleges and Universities.
University, in terminating non-tenured professor, did not breach professor's employment contract and could not have breached
implied covenant of good faith and fair dealing. Professor's contract incorporated university and community college system Code but
did not incorporate university and departmental Bylaws, Code entitled non-tenured faculty members to at least 365 days' notice of
termination, and professor received 369 days' notice of his termination.
University or departmental Bylaws were not incorporated into university's employment contract with non-tenured
professor,
versity's employment contract with non-tenured professor, either expressly or pursuant to university Code sections requiring
institutions to adopt Bylaws setting forth institution's organizational structure and personnel policies and allowing departments to adopt
Bylaws concerning tenure appointment.
11. Costs.
District court was within its discretion in awarding attorney's fees to university under offer of judgment rule in professor's action
against university for breach of employment contract, though university did not disclose that it would raise issue preclusion defense
prior to or at time it made its offer of judgment to professor. University's failure to bring issue preclusion defense earlier did not
constitute withholding of information that rendered professor's rejection of offer of judgment reasonable. NRCP 68.
12. Costs.
The following factors should be considered by trial court in exercising its discretion to award attorney's fees pursuant to rule
governing offers of judgment: (1) whether the plaintiff's claim was brought in good faith, (2) whether the defendant's offer of judgment
was reasonable and in good faith in both its timing and amount, (3) whether the plaintiff's decision to reject the offer and proceed to
trial was grossly unreasonable or in bad faith, and (4) whether the fees sought by the offeror are reasonable and justified in amount.
Where district court properly considers these factors, the award of attorney's fees is discretionary and will not be disturbed absent a
clear abuse of discretion. NRCP 68.
OPINION
Per Curiam:
Appellant was a non-tenured professor at the University of Nevada, Reno, when he received 369 days'
notice that his yearly contract would not be renewed. Appellant brought suit over the termination of his
employment in federal and state courts. After the federal action was dismissed, respondents moved for
summary judgment in state court on the basis of issue preclusion. The state district court granted the motion,
concluding that issue preclusion prevented appellant from pursuing his claims in state court. The state court
also granted respondents' motion for attorney's fees and costs incurred from the date appellant rejected
respondents' offer of judgment. Appellant appeals the summary judgment and the award of attorney's fees.
We conclude that the district court properly relied on issue preclusion in granting summary judgment and
did not abuse its discretion in awarding attorney's fees.
FACTS
Appellant's employment with the University of Nevada, Reno, began on or about July 15, 1993, when he
began working as a part-time professor. On July 1, 1994, appellant became employed at the university in a
full-time, non-tenured position. On June 27, 1995, appellant was presented by a supervisor with a notice of
non-reappointment to employment and a terminal contract. On June 30, 1996, 369 days later, appellant's
employment at the university ended.
Appellant's contract incorporated as part of its terms the University and Community College System of
Nevada Code (hereafter Code).
1
Code section 5.9.1 provides that [notice] of non[-]reappointment to
employment of nontenured faculty at the University of Nevada, Reno . . . shall be given . . . [a]t least 365
calendar days in advance of the termination of each succeeding employment contract of an academic or fiscal
year's duration after the second year of service. Code section 5.7.2 states that [a]ny decision which involves
the non[-]reappointment to employment of faculty as provided in Subsections 5.4.2, 5.8.2, 5.9.1 and 5.9.2 of the
[Code] . . . is not subject to review by grievance procedures.
After termination of his employment with the university, appellant filed lawsuits against respondents in
federal and state courts. The federal action included three causes of action: deprivation of constitutionally
protected liberty or property interests without due process of law; conspiracy to deprive constitutionally
protected liberty or property interests without due process of law; and a pendent state law claim alleging that
respondents ignored his evaluations, failed to give him a grievance procedure and denied him the benefits of his
employment. The state action included three causes of action: breach of contract, breach of covenant of good
faith and fair dealing, and negligent supervision.
The federal court dismissed the federal action, concluding that respondents were not obligated to
provide anything other than the written notice they provided to appellant,
__________

1
The relevant portions of appellant's contract are as follows:
The University and Community College System of Nevada Code requires that all terms and
conditions of employment be specified in this document. Any other terms, understandings, promises,
prior negotiations or representations, or conditions not specified in the REMARKS section above, or
attached to and made a part of this contract, shall not be considered a part of the contract of
employment.
The University and Community College System of Nevada Code, the official document governing
personnel matters and procedures concerning the professional staff, is a regularly published document
and is available at each institution. The Code is incorporated herein and by this reference made a part
of this contract. This contract is not binding or of any legal effect until duly executed by both the
appointee and the appointing officer.
respondents were not obligated to provide anything other than the written notice they provided to appellant, that
respondents were under no obligation to renew appellant's contract, and that respondents were under no duty to
heed appellant's evaluations or give him a grievance procedure. Approximately one year after dismissal of the
federal action, respondents filed a motion for summary judgment in the state action. The state court granted the
motion, concluding that issue preclusion prevented appellant from pursuing his claims in state court. The district
court also granted respondents' motion for attorney's fees and costs incurred since the time appellant rejected
respondents' offer of judgment. Appellant appeals the summary judgment and the award of attorney's fees.
DISCUSSION
I. Summary judgment
[Headnote 1]
[A]n order granting summary judgment is reviewed de novo. Executive Mgmt. v. Ticor Title Ins. Co., 114
Nev. 823, 834, 963 P.2d 465, 473 (1998) (citing Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282
(1989)).
[Headnotes 2-5]
Issue preclusion, or collateral estoppel,
2
is a proper basis for granting summary judgment. See Paradise
Palms v. Paradise Homes, 89 Nev. 27, 505 P.2d 596 (1973). In Executive Management, we clarified the
three-part test for issue preclusion as follows:
(1) the issue decided in the prior litigation must be identical to the issue presented in the current action;
(2) the initial ruling must have been on the merits and have become final; and (3) the party against whom
the judgment is asserted must have been a party in privity with a party to the prior litigation. . . . [W]e
hereafter construe this language as stating the applicable test for issue preclusion, rather than for res
judicata which encompasses the rule of claim preclusion.
Executive Management, 114 Nev. at 835-36, 963 P.2d at 473-74
__________

2
To minimize confusion, this opinion exclusively uses the term issue preclusion in its analysis, although
issue preclusion and collateral estoppel are interchangeable terms. See University of Nevada v. Tarkanian,
110 Nev. 581, 598-99, 879 P.2d 1180, 1192 (1994) (Issue preclusion, or collateral estoppel, may be implicated
when one or more of the parties to an earlier suit are involved in subsequent litigation on a different claim. Issues
that were determined in the prior litigation arise in the later suit. If the common issue was actually decided and
necessary to the judgment in the earlier suit, its relitigation will be precluded.).
(quoting University of Nevada v. Tarkanian, 110 Nev. 581, 598, 879 P.2d 1180, 1191 (1994)) (citing Bernhard
v. Bank of America National Trust and Savings Ass'n, 122 P.2d 892 (Cal. 1942)). The general rule of issue
preclusion is that if an issue of fact or law was actually litigated and determined by a valid and final judgment,
the determination is conclusive in a subsequent action between the parties. ' Executive Management, 114 Nev.
at 835, 963 P.2d at 473 (quoting Tarkanian, 110 Nev. at 599, 879 P.2d at 1191) (quoting Charles A. Wright,
Law of Federal Courts 100A, at 682 (4th ed. 1983)). The doctrine provides that any issue that was actually
and necessarily litigated in [case I] will be estopped from being relitigated in [case II].' Executive
Management, 114 Nev. at 835, 963 P.2d at 473 (quoting Tarkanian, 110 Nev. at 599, 879 P.2d at 1191).
Unlike claim preclusion, issue preclusion does not apply to matters which could have been litigated but were
not.' Executive Management, 114 Nev. at 835, 963 P.2d at 473 (quoting Pomeroy v. Waitkus, 183 Colo. 344,
517 P.2d 396, 399 (1974)) (footnote omitted).
[Headnote 6]
Appellant contends that issue preclusion does not apply to his state action because the issues in the federal
case were not identical to the issues in his state action. Specifically, appellant contends that an issue from his
state action, breach of employment contract by failure to follow personnel procedures contained in the Code and
university and departmental bylaws (hereafter Bylaws), is not identical to the issue in the federal action of
whether the Code and Bylaws created a protected property interest. Appellant concedes that the two issues may
have overlapping analysis, but asserts that the issues are nevertheless not identical and therefore issue preclusion
cannot apply.
[Headnotes 7, 8]
We conclude that appellant's contention lacks merit. Issue preclusion may apply even though the causes of
action are substantially different, if the same fact issue is presented. Clark v. Clark, 80 Nev. 52, 56, 389 P.2d
69, 71 (1964). The district court correctly applied the doctrine of issue preclusion based on appellant's own
concession that identical facts supported both the federal and state actions. Appellant again concedes on appeal
that identical facts supported the federal and state actions. We note, as do respondents, that appellant uses the
same arguments in this appeal as he used in response to the motion to dismiss the federal case.
3
Based on our
review of the record, we conclude that, in essence, the common issue in both the federal and state
actions is whether respondents, in terminating appellant's employment, were obligated to
do anything else in addition to what they did.
__________

3
Appellant argued in his federal response and contends now on appeal the following: his argument that Code
and Bylaw procedures were not followed when appellant was terminated; his argument that he was entitled to
contract renewal if specific Code and Bylaw conditions were met; his argument
essence, the common issue in both the federal and state actions is whether respondents, in terminating appellant's
employment, were obligated to do anything else in addition to what they did. Because this common issue
was actually litigated and determined by a valid and final judgment, the determination is conclusive in a
subsequent action between the parties. ' Executive Management, 114 Nev. at 835, 963 P.2d at 473 (citations
omitted). The federal court's minute order makes it clear that the federal court made a determination on that
common issue.
4
The minute order stated as follows:
We have found nothing in the case law, the Nevada Revised Statutes, the University Code, or the
University By-Laws [sic] providing an untenured faculty member anything other than written notice
before termination. . . . [Respondents] were under no obligation whatsoever to renew [appellant's]
contract, made no promises to renew it, and could decide not to renew it even for petty and malicious
reasons.
. . . .
. . . But [Respondents] were under no duty to heed his evaluations (for purposes of determining whether
to renew his contract) or to give him a grievance procedure.
Because the common issue of whether respondents did what they were obligated to do had already been litigated
and determined in a final judgment of the federal court, we conclude that the district court did not err in granting
summary judgment on the grounds of issue preclusion.
[Headnotes 9, 10]
We note also that we agree with respondents' alternative contention that summary judgment could have been
appropriately granted on the grounds that no genuine issue of material fact remained as to
both the breach of contract claim and the breach of the covenant of good faith and fair
dealing claim.
__________
construing the contract (repeated almost word for word on appeal); his argument relying on section one of the
Bylaws and Code section 1.3.4 (reproduced verbatim on appeal); his argument regarding the application of Code
section 5.2.1 and Bylaws 41 and 43(a); his arguments regarding the issues of the timing of his evaluation, the
alleged irregularity with the signatures on the notice of non-reappointment, and his description of the university's
regular administrative channels.

4
Appellant contends that the federal court erred in making factual determinations in deciding a motion to
dismiss and that it should have instead only made presumptions as to the truthfulness of the allegations. That
may be an issue for federal appellate review of that case, but it is not an issue for this court to decide. Absent any
indication in the record of a federal appeal and a subsequent reversal of the federal court's factual findings, we
accept the federal judgment as valid, pursuant to the presumption that a judgment is valid if it is regular on its
face. Charmicor, Inc. v. Bradshaw Finance Co., 92 Nev. 310, 313, 550 P.2d 413, 415 (1976) (citing Moore v.
Cherry, 90 Nev. 390, 528 P.2d 1018 (1974)).
granted on the grounds that no genuine issue of material fact remained as to both the breach of contract claim
and the breach of the covenant of good faith and fair dealing claim. Respondents contend that there were no
disputed facts material to either claim: appellant conceded that he was non-tenured, that the Code was made a
part of his employment contract, and that he received notice of non-reappointment 369 days prior to his
termination. We agree that the district court could have concluded as a matter of law, based on reading the plain
language of the contract, which mentions the Code but makes no mention of the Bylaws, that the Code was
incorporated into the terms of the contract but the Bylaws were not.
5
Because the application of the Bylaws was
thus irrelevant, since they were not part of the contract, any disputed factual issues over Bylaw procedures were
likewise irrelevant and would not preclude summary judgment. Summary judgment would thus have been proper
because all factual issues concerning the Code alone, and not the Bylaws, were non-disputed: namely, Code
section 5.9.1 provided that appellant, as a non-tenured faculty member, was entitled to receive at least 365 days'
notice of termination; and Code section 5.7.2 provided that when appellant received this minimal notice under
Code section 5.9.1, he was not entitled to the university's grievance procedures. Because there was no dispute
that appellant received his notice 369 days prior to termination, the district court could have properly concluded
that respondents fulfilled the contract. Hence, as a matter of law, respondents did not breach the contract and
could not have breached the implied covenant of good faith and fair dealing.
II. Attorney's fees
[Headnote 11]
Appellant contends that the district court abused its discretion in awarding attorney's fees to respondents,
because respondents' offer of judgment was not reasonable in its timing and appellant's
rejection of the offer was not unreasonable or in bad faith.
__________

5
Appellant contends that the Bylaws were incorporated into his contract, citing Code section 1.3.4, which
states, in part: Systems Institutions shall adopt bylaws to set forth the institution's organizational structure and
personnel policies. This argument lacks merit because the employment contract provides only that the Code is
incorporated into the contract, without making any mention of the Bylaws, and that [a]ny other terms,
understandings, promises, prior negotiations or representations, or conditions not specified in the REMARKS
section above, or attached to and made a part of this contract, shall not be considered a part of the contract of
employment. Because the Bylaws are not expressly incorporated into the contract, we conclude that the
oblique reference in Code section 1.3.4 does not incorporate the Bylaws into the contract. We note that Code
section 3.4.2(c) states that departments may adopt bylaws implementing additional standards for
recommending academic faculty for [tenure] appointment. However, because Code section 3.4.2 deals with
appointment of tenure, not the decision to reappoint non-tenured faculty, it is inapplicable to this case.
offer of judgment was not reasonable in its timing and appellant's rejection of the offer was not unreasonable or
in bad faith. Appellant contends that respondents' failure to raise, or give notice of their intent to raise, the issue
preclusion defense earlier unfairly deprived him of valuable information which could have impacted his decision
of whether to accept respondents' offer. This failure to raise the issue preclusion defense earlier, appellant
argues, is analogous to the withholding of information in Trustees, Carpenters v. Better Building Co., 101 Nev.
742, 746, 710 P.2d 1379, 1382 (1995).
In Trustees, the district court refused to award attorney's fees under NRCP 68, concluding that the offeree's
rejection of the offer of judgment was not unreasonable or in bad faith, because information essential to the
offeree's decision to accept or reject an offer of judgment was available only to the offeror and was not disclosed
to the offeree until nine months after the offer of judgment was made. Id. Similarly, appellant argues that his
rejection of respondents' offer of judgment could not be unreasonable, because respondents at the time had not
disclosed to him that they would raise the issue preclusion defense. Further, appellant argues that respondents'
failure to give notice of the issue preclusion defense prior to making the offer makes their offer unreasonable in
its timing, pointing out that respondents' extensive discovery costs and attorney's fees could have been avoided
had respondents filed their motion for summary judgment soon after the federal case was dismissed, rather than a
year later.
[Headnote 12]
In Beattie v. Thomas, 99 Nev. 579, 588, 668 P.2d 268, 274 (1983), we stated that the trial court should
consider the following factors in exercising its discretion regarding an NRCP 68 award of attorney's fees:
(1) whether the plaintiff's claim was brought in good faith; (2) whether the defendant's offer of judgment
was reasonable and in good faith in both its timing and amount; (3) whether the plaintiff's decision to
reject the offer and proceed to trial was grossly unreasonable or in bad faith; and (4) whether the fees
sought by the offeror are reasonable and justified in amount.
Where the district court properly considers these Beattie factors, the award of attorney's fees is discretionary and
will not be disturbed absent a clear abuse. Bidart v. American Title, 103 Nev. 175, 179, 734 P.2d 732, 735
(1987) (citing Trustees, 101 Nev. at 746, 710 P.2d at 1382).
Upon reviewing the record, we conclude that the district court did not abuse its discretion in applying the
Beattie factors and awarding attorney's fees to respondents.
awarding attorney's fees to respondents. Respondents' failure to bring the issue preclusion defense earlier did not
constitute a withholding of information that rendered appellant's rejection of the offer of judgment reasonable,
because respondents did not actually withhold any information about the federal case from appellant. Appellant
had just as much information about the federal dismissal as did respondents. Appellant's failure to anticipate
respondents' defense does not amount to a withholding of information as occurred in Trustees. Therefore, we
disagree that the district court abused its discretion in concluding that appellant unreasonably rejected the offer
of judgment. Because the district court applied all of the Beattie factors without clear abuse of discretion, we
uphold the award of attorney's fees.
CONCLUSION
The common issue in appellant's federal and state actions was simply whether respondents did what they
were obligated to do, under the terms of appellant's employment contract. Because this common issue was
litigated and determined in the federal action, the state district court properly granted summary judgment on
the grounds of issue preclusion. The district court did not abuse its discretion in awarding attorney's fees to
respondents, because the district court correctly applied the Beattie factors in making the award.
Based on the foregoing, we affirm the district court's order granting summary judgment and the order
awarding attorney's fees to respondents.
____________
116 Nev. 424, 424 (2000) Lee v. GNLV Corp.
AHILIYA LEE, Widow of BOBBY LEE STURMS, aka BOBBY LEE, Deceased; AHILIYA LEE, as Guardian
ad Litem for AARON CODY LEE, a Minor, Appellant, v. GNLV CORP., dba GOLDEN NUGGET
HOTEL AND CASINO, Respondent.
No. 33172
April 5, 2000 996 P.2d 416
Motion to dismiss an appeal from an order of the district court granting summary judgment in a wrongful
death action. Eighth Judicial District Court, Clark County; Sally L. Loehrer, Judge.
Widow brought wrongful death action on behalf of herself and minor child against casino, seeking recovery
for death of husband. The district court entered judgment in favor of casino, and widow appealed. Casino moved
to dismiss appeal as premature. The supreme court held that summary judgment order was final and
appealable judgment, even though trial court subsequently entered formal "judgment"
awarding casino fees and costs.
appealable judgment, even though trial court subsequently entered formal judgment awarding casino fees and
costs.
Motion denied.
Law Offices of Gus W. Flangas, Las Vegas, for Appellant.
Carolyn Ellsworth, Paula C. Gentile and Nikki D. Wilson-Thomas, Las Vegas, for Respondent.
1. Judgment.
A final judgment is one that disposes of all the issues presented in the case and leaves nothing for the future consideration of the
court except for post-judgment issues such as attorney's fees and costs; abrogating Alper v. Posin, 77 Nev. 328, 330, 363 P.2d 502, 503
(1961), Magee et al. v. Whitacre et al., 60 Nev. 202, 96 P.2d 201 (1939), Perkins v. Sierra Nevada S.M. Co., 10 Nev. 405 (1876).
A post-judgment order awarding attorney's fees and/or costs may be appealed as a special order made after final judgment.
Whether the district court's decision is entitled a judgment or an order is not dispositive in determining whether it may be
appealed; what is dispositive is whether the decision is final.
4. Appeal and Error; Judgment.
Summary judgment order entered in favor of casino in widow's wrongful death action was final and appealable, and thus widow's
appeal from that judgment was not premature, even though trial court subsequently entered formal judgment awarding casino fees
and costs.
OPINION
Per Curiam:
Respondent GNLV Corporation has moved to dismiss the underlying appeal on the ground that the order
appealed from was neither a final judgment nor an appealable order pursuant to NRAP 3A. We conclude
that an order granting summary judgment, which disposes of all claims and parties before the district court,
is final and appealable, and we therefore deny respondent's motion.
Appellant Ahiliya Lee, individually and as guardian ad litem for Aaron Cody Lee, a minor, filed an action
for wrongful death against GNLV on August 1, 1995. On July 27, 1998, GNLV moved for summary
judgment. On September 10, 1998, the district court entered a written order granting the motion for summary
judgment, thereby disposing of all claims and all parties in the action. Appellant filed her notice of appeal
from this order on October 9, 199S.
October 9, 1998. Thereafter, on October 16, 1998, the district court entered a formal judgment, which directed
entry of judgment in favor of GNLV in the sum of $876.60, the amount of GNLV's costs. The notice of entry of
the judgment was served on October 19, 1998, and appellant did not file a second notice of appeal.
GNLV has moved to dismiss this appeal, contending that an order granting summary judgment is not an
appealable order because it is neither a judgment nor an order from which an appeal will lie pursuant to NRAP
3A(b). See NRAP 3A(b)(2) (specifically listing certain types of orders as appealable). According to GNLV, the
district court's judgment filed on October 16, 1998, constituted the final judgment in this matter. Hence,
GNLV maintains that appellant's notice of appeal was prematurely filed on October 9, 1998, and failed to vest
jurisdiction in this court. See Rust v. Clark Cty. School District, 103 Nev. 686, 747 P.2d 1380 (1987) (noting
that a premature notice of appeal is ineffective to vest jurisdiction in this court). We disagree.
[Headnotes 1, 2]
As an initial matter, we observe that a final judgment has been described as one that disposes of the issues
presented in the case, determines the costs, and leaves nothing for the future consideration of the court. See,
e.g., Alper v. Posin, 77 Nev. 328, 330, 363 P.2d 502, 503 (1961); Magee et al. v. Whitacre et al., 60 Nev. 202,
96 P.2d 201 (1939); Perkins v. Sierra Nevada S.M. Co., 10 Nev. 405 (1876). This definition suggests that an
order of the district court is not a final judgment unless the court has also determined costs.
1
Such an
interpretation, however, is inconsistent with NRCP 58(c), which specifies that the entry of a judgment shall not
be delayed for the taxing of costs. To avoid any confusion regarding this matter, we clarify that a final
judgment is one that disposes of all the issues presented in the case, and leaves nothing for the future
consideration of the court, except for post-judgment issues such as attorney's fees and costs. A post-judgment
order awarding attorney's fees and/or costs may be appealed as a special order made after final judgment,
pursuant to NRAP 3A(b)(2). See Smith v. Crown Financial Services, 111 Nev. 277, 280 n.2, 890 P.2d 769, 771
n.2 (1995).
We now turn to the merits of the motion. Pursuant to NRAP 3A(b)(1), an appeal may be taken from a final
judgment in an action or proceeding. Judgment, as the term is used in the Nevada Rules of Civil Procedure,
includes any order from which an appeal lies."
__________

1
Pursuant to NRS 18.020, the district court must allow costs to the prevailing party in certain enumerated
cases.
an appeal lies. NRCP 54(a) (emphasis added). Accordingly, this court has customarily adopted the view that the
finality of a district court's order depends not so much on its label as an order or a judgment, but on what the
order or judgment substantively accomplishes.
This point is illustrated in Taylor v. Barringer, 75 Nev. 409, 344 P.2d 676 (1959). In Taylor, respondents
argued that an order dismissing an action was not an appealable order as defined in former NRCP 72(b).
2
This
court disagreed, stating as follows:
True it is that Rule 72(b)(1) permits an appeal from a final judgment and says nothing about an order of
dismissal; nevertheless, the formal order dismissing the action as to defendants . . . was signed by the
judge and filed in the action and is in effect a final judgment although entitled an order.
Taylor, 75 Nev. at 410, 344 P.2d at 676. We additionally recognized that had the court here, after entering an
order, gone on to enter a judgment, the latter would have been superfluous.' Id. at 410, 344 P.2d at 676-77
(quoting Markert v. Swift & Co., 173 F.2d 517, 519 (2d Cir. 1949)).
More recently, in Valley Bank of Nevada v. Ginsburg, 110 Nev. 440, 445, 874 P.2d 729, 733 (1994), we
reiterated that [t]his court determines the finality of an order or judgment by looking to what the order or
judgment actually does, not what it is called. We thus found labels to be inconclusive when determining
finality; instead, we recognized that this court has consistently determined the finality of an order or judgment by
what it substantively accomplished. Id. at 444-45, 874 P.2d at 733 (citing State, Taxicab Authority v.
Greenspun, 109 Nev. 1022, 1025, 862 P.2d 423, 425 (1993); Hallicrafters Co. v. Moore, 102 Nev. 526, 528-29,
728 P.2d 441, 443 (1986)); see also Bally's Grand Hotel v. Reeves, 112 Nev. 1487, 1488, 929 P.2d 936, 937
(1996) ( This court has consistently looked past labels in interpreting NRAP 3A(b)(1), and has instead taken a
functional view of finality, which seeks to further the rule's main objective: promoting judicial economy by
avoiding the specter of piecemeal appellate review.' ) (quoting Ginsburg, 110 Nev. at 444, 874 P.2d at 733).
[Headnotes 3, 4]
Thus, whether the district court's decision is entitled a judgment or an order is not dispositive in
determining whether it may be appealed; what is dispositive is whether the decision is final. Here, the order
granting summary judgment, which adjudicated the rights and liabilities of all parties and disposed of all issues
presented in the case, was final.
__________

2
Excluding minor differences not relevant to this motion, former NRCP 72(b) is identical to current NRAP
3A.
issues presented in the case, was final. In keeping with this reasoning, we have consistently considered appeals
from summary judgment orders disposing of the entire action.
3
See, e.g., Farmers Insurance Group v. Stonik,
110 Nev. 64, 867 P.2d 389 (1994); Breithaupt v. USAA Property and Casualty, 110 Nev. 31, 867 P.2d 402
(1994); Bish v. Guaranty Nat'l Ins., 109 Nev. 133, 848 P.2d 1057 (1993).
Accordingly, we conclude that the order granting summary judgment was a final, appealable judgment, and
appellant's notice of appeal was timely.
4
We therefore deny the motion to dismiss this appeal.
____________
116 Nev. 428, 428 (2000) University of Nevada, Reno v. Stacey
UNIVERSITY OF NEVADA, RENO, a State Agency; STATE OF NEVADA; BERNARD JONES and
GEORGE TAYLOR, Appellants, v. PETER B. STACEY, Respondent.
No. 31006
April 6, 2000 997 P.2d 812
Appeal from a judgment pursuant to a jury verdict in a breach of contract action. Second Judicial District
Court, Washoe County; Mills Lane, Judge.
Professor sued state university for breach of contract based on university's failure to grant him tenure.
Following jury trial, the district court entered judgment for professor. University appealed. The supreme court
held that: (1) denial of tenure was discretionary decision under contract that extended professor's probationary
period, and therefore that decision did not breach contract; and (2) university was immune from suit because its
actions were discretionary.
Reversed.
Hicks & Walt and Carol A. Cooke, Reno; Thomas J. Ray, General Counsel, and Brooke A. Nielsen, Assistant
General Counsel, University and Community College System of Nevada, Reno, for Appellants.
Richard C. Blower, Sparks, for Respondent.
__________

3
To the extent that Fitzharris v. Phillips, 74 Nev. 371, 333 P.2d 721 (1958), suggests that a summary
judgment order is not a final judgment, we hereby disapprove of that portion of Fitzharris.

4
We caution litigants, however, that orders granting partial summary judgment, see NRCP 56, which are
generally not appealable absent a certification of finality pursuant to NRCP 54(b), are to be distinguished from
summary judgment orders that dispose of all issues and parties.
Summary judgment orders are reviewed de novo.
2. Judgment.
Summary judgment is appropriate when a contract is clear and unambiguous, meaning that the contract is not reasonably
susceptible to more than one interpretation.
State university's denial of tenure to professor was discretionary decision and thus did not breach contract that extended professor's
probationary period, even though teacher had consistently received excellent evaluations. Provisions incorporated from university
bylaws described tenure as a privilege and vested final authority on granting tenure in Board of Regents, other bylaws and
administrative manual augmented criteria for tenure beyond the minimum eligibility requirements, and department in which professor
served augmented those requirements further with its own bylaws.
Supreme court is committed to protecting a state university's inherent right to govern itself within constitutional limitations.
State university was statutorily immune from suit for breach of contract in connection with its failure to award tenure to professor
whose probationary period was extended under that contract. Decision on granting tenure was a discretionary, as opposed to
ministerial, act. NRS 41.032(2).
OPINION
Per Curiam:
This is a case about tenure. Peter Stacey, a University of Nevada, Reno (UNR) professor, was denied
tenure numerous times. Consequently, Stacey sued UNR for breach of contract, alleging that UNR was
contractually obligated to grant him tenure because he had received excellent evaluations over the years.
In response to Stacey's claims, UNR filed several motions seeking dismissal, alleging among other things
that tenure was discretionary under Stacey's contract and that UNR was statutorily immune from suit
pursuant to NRS 41.032(2). The district court denied UNR's motions, ruling that the jury should determine if
UNR had breached its employment contract.
After a three-day trial, the jury found that UNR had breached its contract with Stacey and awarded him
$400,000.00 in damages. Thereafter, UNR filed this timely appeal contending, in relevant part, that Stacey
had no contractual right to tenure. In reviewing the plain language of Stacey's contract, we agree with UNR
that Stacey had no contractual right to tenure as a matter of law. Accordingly, we reverse the judgment
below.
In March 1990, UNR hired Stacey for the position of Full Professor of Conservation Biology in its
Environmental and Resource Sciences Department of the College of Agriculture. UNR gave Stacey a
twelve-month contract with three years credit toward tenure track.
1
With respect to attaining tenure, Stacey
testified that when he accepted the job at UNR he believed that he was contractually entitled to tenure provided
that he earned an excellent rating in teaching and a satisfactory rating in service. These ratings are the
threshold criteria for tenure consideration set forth in the bylaws of the University and Community College
System of Nevada (the code).
The record reveals that Stacey received adequate performance evaluation ratings to qualify for tenure
consideration. Consequently, Stacey applied for tenure every year from 1993-95, but was rejected each time
despite receiving excellent ratings. Because Stacey failed to make tenure by his up and out year, UNR issued
Stacey a terminable contract, which provided that UNR would employ Stacey through June 30, 1995, but was
otherwise not renewable. Stacey signed the terminable contract under protest, because his 1994 tenure
application was being reconsidered.
Eventually, however, in an attempt to settle numerous grievances that Stacey had filed, UNR withdrew
Stacey's terminable contract in a written agreement signed by the parties on February 28, 1995 (the 1995
agreement). The 1995 agreement provided that UNR would withdraw Stacey's terminable contract and extend
Stacey's employment until June 30, 1997, in exchange for Stacey's release of all claims against UNR. The 1995
agreement expressly stated that Stacey would not be tenured by default, but rather could apply for tenure
under UNR's normal procedures during his new probationary period.
These normal procedures for applying for tenure were contained in four written administrative
documents that were incorporated by reference into Stacey's 1995 agreement and included the code, UNR's
bylaws, UNR's administrative manual, and UNR's College of Agriculture bylaws.
Based on the 1995 agreement, Stacey again applied for tenure in 1996. Despite the fact that Stacey had
received an excellent performance rating, Stacey's 1996 application for tenure was denied.
__________

1
Generally speaking, tenure track at UNR is six years. If the professor is not tenured by the sixth year (the
up and out year), then UNR ordinarily issues that professor a terminable contract for the seventh year,
giving that professor twelve-months' notice that his contract will not be renewed. Stacey testified that he knew
that his up and out year was 1994-95 and that if he failed to attain tenure before 1995, UNR would provide
him with a terminable contract notifying him that he would be terminated in twelve months.
performance rating, Stacey's 1996 application for tenure was denied. Stacey filed for reconsideration of his 1996
application, but it also was denied.
2

Consequently, on July 19, 1996, Stacey filed a breach of contract action, alleging in relevant part that UNR
had breached the 1995 agreement by denying Stacey's 1996 application for tenure. In response to Stacey's
claims, UNR filed a motion for summary judgment, alleging among other things that under the 1995 agreement
the grant of tenure was a subjective professional judgment, and thus its denial of Stacey's tenure application was
not a breach of contract. The district court, however, denied UNR's motion for summary judgment on Stacey's
1996 breach of contract claim, finding that Stacey had raised triable issues of material fact as to whether UNR
breached its contract with him.
After a three-day trial on Stacey's claim, the jury found that UNR had breached its contract with Stacey,
awarded him $400,000.00 in damages, and the district court entered the judgment in accordance with the jury's
verdict. Thereafter, UNR filed this timely appeal alleging, in relevant part, that the district court erred in denying
its motion for summary judgment.
DISCUSSION
[Headnotes 1, 2]
Summary judgment orders are reviewed de novo. See Day v. Zubel, 112 Nev. 972, 977, 922 P.2d 536, 539
(1996). Summary judgment is appropriate when a contract is clear and unambiguous, meaning that the contract
is not reasonably susceptible to more than one interpretation. See Margrave v. Dermody Properties, 110 Nev.
824, 827, 878 P.2d 291, 293 (1994); Chwialkowski v. Sachs, 108 Nev. 404, 406, 834 P.2d 405, 406 (1992)
(holding that summary judgment was proper because an unambiguous contract can be construed as a matter of
law from the language of the document).
[Headnote 3]
In the instant matter, UNR contends that the district court erred in denying its motion for summary judgment
of Stacey's breach of contract action because UNR's decision to grant Stacey tenure was discretionary under the
1995 agreement as a matter of law.
3

__________

2
Eventually, because Stacey had not attained tenure within the time allotted under the 1995 agreement,
Stacey lost his job on June 30, 1997.

3
UNR asserts numerous other contentions on appeal, including that the district court committed reversible
error in instructing the jury, in admitting inadmissible evidence, and in making improper comments. Because we
conclude that summary judgment was proper in this matter, we need not and do not reach these other issues.
We agree with UNR's contention that summary judgment was mandated in this instance. The contract before us
is unambiguous and susceptible to only one interpretationUNR's decision to grant Stacey tenure was
completely discretionary.
The plain language of Stacey's contract is replete with written provisions concerning the discretionary nature
of UNR's decision to grant tenure. These provisions are set forth in four separate written documents: (1) the
code, (2) the UNR bylaws, (3) the UNR administrative manual, and (4) the UNR College of Agriculture bylaws.
4

First, the code, particularly chapter three, sets forth the procedures involved in the tenure application process.
For example, section 3.4.2(a) sets forth the minimum standards for eligibility for tenure consideration,
specifically an excellent rating in teaching and a satisfactory rating in service. Section three also describes
tenure as a privilege:
3.1.2 Conditions on Tenure. The major objectives of tenure are to provide a faculty committed to
excellence and to provide a substantial degree of security to those persons who have exhibited excellent
abilities, sufficient to convince the University of Nevada community that their expected services and
performances in the future justify the privileges afforded by tenure.
(Emphasis added.) More importantly, section 3.4.1 of the code provides that the Board of Regents has final
authority in granting tenure and requires a majority vote from a quorum of the Board of Regents.
Second, the UNR bylaws augment the criteria for tenure. Specifically, sections 40, 41, 42, and 45 prescribe
that tenure evaluations are made on the basis of professional responsibilities according to the missions and
priorities of the applicant's department. Further, such decisions require peer review, including a recommendation
from the Academic Faculty Promotion and Tenure Committee.
Third, UNR's administrative manual augments the code with respect to tenure. Section 2,723 states explicitly
that tenure is not automatic:
It should be remembered that granting of tenure and of promotion to a higher rank is not to be expected
or made automatically.
__________

4
These administrative bylaws and rules were incorporated by reference into Stacey's 1995 agreement that
explicitly stated that Stacey would not be tenured by default, but could apply for tenure under UNR's normal
procedures. The normal procedures for eligibility for tenure are set forth in section 3.4.2 of the code, which
authorizes each university, its administrative units, and its departments to provide additional written criteria for
attaining tenure.
matically. Mediocrity and substandard performance must not be regarded in such a way as to permanently
perpetuate a faculty member of less than superior caliber. Tenure is granted only in cases of definite
merit and absence of any doubt that the individual be appointed for life. . . .
(Emphasis added.) Moreover, the manual, section 2,721, sets forth numerous criteria in recommending tenure,
including effective teaching skills, ability to communicate with students, evidence of continued professional
growth, a record of creative research, indication of respect and esteem of colleagues, and respect for
participation in community service.
Fourth, the College of Agriculture augments the code in its bylaws. Part IV of the bylaws provides for the
establishment of a peer review committee that is required to review all tenure applications and make an
independent recommendation.
We cannot reconcile the aforementioned discretionary provisions of Stacey's contract with his theory that he
was contractually entitled to tenure, because so doing would render numerous contractual provisions
meaningless. See Musser v. Bank of America, 114 Nev. 945, 950, 964 P.2d 51, 54 (1998) ([C]ontracts should
be construed so as to avoid rendering portions of them superfluous.); Coblentz v. Union Welfare Fund, 112
Nev. 1161, 1169, 925 P.2d 496, 501 (1996). Indeed, the provisions of Stacey's contract negate any theory that
tenure was automatic, and instead, provide that the grant of tenure is a privilege and a decision of such import
that numerous criteria are set forth, committees are formed, and votes are taken. Because the contractual
provisions concerning tenure clearly require the exercise of discretion and subjective decision making, we agree
with UNR that it was entitled to summary judgment because its denial of Stacey's tenure application was not, as
a matter of law, a breach of contract.
We therefore conclude, based on the aforementioned contractual provisions, that tenure is a
multidimensional, subjective, decision-making process where numerous traits and work habits of a professor are
considered. Accordingly, the district court erred in denying summary judgment, as there was no triable issue of
material fact because UNR's denial of tenure was discretionary under the contractnot a breach of contract.
Although the plain meaning of the language of Stacey's contract controls our analysis, we are not unaware of
the long-standing precedent recognizing that faculty appointment at the university level is an area poorly suited
for judicial supervision, and thus one where judicial restraint must be exercised. See Kunda v. Muhlenberg
College, 621 F.2d 532 (3d Cir. 1980); Faro v. New York Univ., 502 F.2d 1229 (2d Cir. 1974). Indeed, other
jurisdictions have held that a university's decision to grant tenure is a discretionary
exercise of judgment that should not be actionable unless arbitrary or unconstitutional.
dictions have held that a university's decision to grant tenure is a discretionary exercise of judgment that should
not be actionable unless arbitrary or unconstitutional. See Harrison v. Goldstein, 611 N.Y.S.2d 623 (N.Y. App.
Div. 1994); Coe v. Board of Regents, 409 N.W.2d 166 (Wis. Ct. App. 1987); Goodisman v. Lytle, 724 F.2d 818
(9th Cir. 1984).
[Headnote 4]
This judicial reluctance to intrude upon university decisions is imbedded in the deeply rooted principles of
academic freedom. See Kunda, 621 F.2d at 547. Academic freedom, though not a specifically enumerated
constitutional right, long has been viewed as a special concern of the First Amendment. EEOC v. University of
Notre Dame Du Lac, 715 F.2d 331, 335 (7th Cir. 1983). This special concern arises from academic freedom's
tremendous value to all of society, as it fosters an environment of experimentation, invention, creation, and the
robust exchange of ideas. See Sweezey v. New Hampshire, 354 U.S. 234, 263 (1956) (Frankfurter, J.,
concurring); University of Notre Dame, 715 F.2d at 335; Kunda, 621 F.2d at 547. Because of the importance of
academic freedom to our society, we hereby reaffirm our commitment to protect a university's inherent right to
govern itself within constitutional limitations.
[Headnote 5]
As an aside, we note that we also agree with UNR's contention that it was immune from suit because its
actions were discretionary. NRS 41.032(2) provides that state agencies performing discretionary acts are
immune from suit. We have previously defined a discretionary act as an act that requires a decision requiring
personal deliberation and judgment. See Parker v. Mineral County, 102 Nev. 593, 595, 729 P.2d 491, 493
(1986). For example, this court has held that discretionary acts for which a government entity was immune from
suit included a decision not to respond to a citizen's report of a person in distress and a decision to construct a
parking lot, freeway, or crosswalk. See id.; see also Foley v. City of Reno, 100 Nev. 307, 309, 680 P.2d 975,
976 (1984); Harrigan v. City of Reno, 86 Nev. 678, 475 P.2d 94 (1970); State v. Webster, 88 Nev. 690, 504
P.2d 1316 (1972).
In contrast, where an act is operational or ministerial rather than discretionary, this court has held that NRS
41.032(2) provides no statutory immunity, and thus an entity has a duty to use due care. For example, once the
discretionary decision to build a freeway is made, the state must use due care in the ministerial act of the
freeway's construction. See Foley, 100 Nev. at 309, 680 P.2d at 976. We see nothing ministerial, however, in a
university's subjective decision to grant one of its professors lifetime employment.
ment. Therefore, in light of this court's holding in Foley, we conclude that UNR is statutorily immune from suit
because its decision to grant tenure was a discretionary act, rather than an operational or ministerial function.
CONCLUSION
We hold that the district court erred in denying UNR's motion for summary judgment because tenure was
discretionary under Stacey's contract. Accordingly, we reverse the judgment in favor of Stacey.
____________
116 Nev. 435, 435 (2000) Fullerton v. State
ROBERT FULLERTON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32295
CORINNE F. BENNETT, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32320
April 6, 2000 997 P.2d 807
Consolidated appeals from judgments of conviction, pursuant to jury verdicts, of twenty-one counts for each
appellant of sale of unregistered security. Second Judicial District Court, Washoe County; Deborah A. Agosti,
Judge.
Defendants charged with violations of Uniform Securities Act petitioned for writs of habeas corpus and
moved to dismiss the counts against them. The district court granted the petitions and motion, and appeal was
taken. The supreme court, 112 Nev. 1084, 924 P.2d 702 (1996), reversed and remanded. After a jury trial on
remand, defendants were convicted, in the district court of twenty-one counts each of sale of unregistered
securities. Defendants appealed. The supreme court held that: (1) sale of unregistered securities is a general
intent crime, (2) sales for which improper commissions were not paid were exempt from registration, and (3)
trial court's restitution order was proper.
Rehearing granted; opinion clarified; remanded. 116 Nev. 906, 8 P.3d 848 (2000).
Michael R. Specchio, Public Defender, and Cheryl D. Bond, Deputy Public Defender, Washoe County, for
Appellant Fullerton.
Karla K. Butko, Reno, for Appellant Bennett.
Frankie Sue Del Papa, Attorney General, and Grenville T. Pridham, Deputy Attorney General, Carson City,
for Respondent.
1. Securities Regulation.
Sale of unregistered securities, in violation of the Uniform Securities Act, is a general intent crime. NRS 90.460.
The improper commissions paid for four stock sales, which caused the loss of the Uniform Securities Act registration exemption
for those sales, did not cause the loss of the registration exemption for all previous sales of the stock issue. NRS 90.530(11)(c).
Evidence that defendant had signed two checks delineated as finder's fees payable to the person who sold the stock, and that
defendant had delivered a stock certificate to an investor, supported finding that defendant sold unregistered securities, in violation of
Uniform Securities Act. NRS 90.460, 90.530(11)(c).
Defendants who sold unregistered securities violated a statute, rather than a regulation, and thus, they could not invoke provision
of Uniform Securities Act prohibiting imprisonment if the defendant proves lack of knowledge of the regulation or order that was
violated. NRS 90.460, 90.650(1)(a), (2), 193.130.
Trial court's restitution order, which allegedly awarded double recovery to victims of sale of unregistered securities, was proper, in
light of Uniform Securities Act's mandatory language stating that [i]n addition to any other penalty, the court shall order the person to
pay restitution. NRS 90.650(1).
6. Criminal Law.
Defendants did not preserve for appellate review their claim that state improperly changed its theory of prosecution without notice,
where defendants did not object in the trial court to state's deletion of considerable portion of indictment on day of trial.
OPINION
Per Curiam:
Appellants were charged with violations of Nevada's Uniform Securities Act. Appellants were convicted,
pursuant to a jury trial, and now appeal. Among other issues raised in this appeal, appellants contend that a
jury instruction erroneously defined a violation of the Nevada Uniform Securities Act as a general intent
crime, that the state presented insufficient evidence to sustain their convictions, and that the district court
erred in the amount of probation it imposed. We conclude that the district court did not err in giving a jury
instruction which defined a violation of NRS 90.460 as a general intent crime. We conclude that insufficient
evidence supports appellants' convictions on seventeen counts,
cient evidence supports appellants' convictions on seventeen counts, but sufficient evidence does support the
convictions on four counts. We also conclude that the district court erred in the amount of probation it imposed.
FACTS
In 1979, appellant Fullerton invented the zip nut, a device designed for quick and easy attachment to a
bolt. In connection with this invention, Fullerton formed a corporation, First Phoenix, Inc. (First Phoenix),
for which he allegedly solicited investments in Nevada. The state filed an indictment charging Fullerton and
Bennett with numerous violations of Nevada's Uniform Securities Act.
1

Bennett filed a pre-trial motion to sever her case from Fullerton's, which the district court denied. The day
of trial, the state deleted from the grand jury indictment all counts against appellants except twenty-one counts
each of sale of unregistered securities in violation of NRS 90.460.
2

At trial, the state presented evidence of four checks signed by Fullerton to Joel McVickers. The checks were
purportedly commission checks for McVicker's sale of First Phoenix stock, pursuant to a verbal agreement
between the two wherein McVickers was to receive a five percent commission for selling First Phoenix stock.
McVickers testified that he was not licensed to sell securities in the State of Nevada. The state also presented
evidence of two checks signed by Bennett to McVickers, both delineated as finder's fees, although the checks
contained no names which could relate the checks to a specific investor. The state argued that the payment of
the commissions vitiated First Phoenix's exemption from the registration requirements of NRS 90.460. The state
presented evidence of other investors who bought First Phoenix stock, but no other evidence of commissions or
finder's fees to McVickers was presented.
Fullerton testified that he did not intend to violate NRS 90.460 when he paid the commissions to McVickers,
and that he did not know that payment of a commission to McVickers would cause him to lose his exemption to
the registration requirements of NRS 90.460. Evidence was presented that Bennett was listed as the president
of First Phoenix and Fullerton was listed as secretaryJtreasurer,
__________

1
This case has already generated an opinion from this court, Sheriff v. Fullerton, 112 Nev. 1084, 924 P.2d
702 (1996). The civil case filed by the state against appellants over the alleged securities violations also
generated an opinion from this court, Fullerton v. District Court, 111 Nev. 391, 892 P.2d 935 (1995).

2
NRS 90.460 makes it unlawful for a person to offer to sell or sell any security in this state unless the
security is registered or the security or transaction is exempt under this chapter.
president of First Phoenix and Fullerton was listed as secretary/treasurer, but Fullerton testified that he
controlled the corporation and that Bennett performed mostly clerical duties, such as filling out stock certificates
and signing them as president of the corporation. Despite the evidence of Bennett's minimal involvement in First
Phoenix and with most of the investors, the state presented the two finder's fee checks signed by Bennett to
McVickers and evidence that Bennett delivered at least one stock certificate to an investor.
Before closing arguments, Bennett made another motion to sever, which was denied. During settling of the
jury instructions, appellants objected to instruction eleven,
3
arguing that the instruction's definition of
willfully
4
improperly made violations of NRS 90.460 a general intent crime. The district court overruled the
objection and the instruction was given.
During deliberation, the jury sent out two questions concerning when, if at all, the loss of the exemption to
the registration requirements of NRS 90.460 occurred and if the transactions prior to the loss of the exemption
were not violations of NRS 90.460. Bennett requested that the district court answer the question by responding
that the prior sales were exempt. The state requested that the district court respond that the prior sales were not
exempt. The district court sent back a reply stating that the questions were factual issues for the jury to decide.
Bennett objected to this answer, but Fullerton did not.
The jury found both appellants guilty on all counts. After the verdict, Bennett made motions to set aside the
judgment, for judgment of acquittal, and for a new trial, all of which the district court denied. The district court
imposed on each appellant two years in prison for counts I through VII, to run consecutively, and two years in
prison for the remaining counts, to run concurrently. The district court suspended all prison time and placed
appellants on probation for a total of thirty-five years each, with probation to end sooner if the restitution was
paid. Appellants were ordered to pay restitution jointly and severally in the amount of $130,500
to various investors in varying amounts.
__________

3
Instruction eleven stated as follows:
The word willfully, when applied to the intent with which an act is done or omitted, as used in my
instructions, implies simply a purpose or willingness to commit the act or to make the omission in
question. The word does not require in its meaning any intent to violate the law, or injure another.

4
The term willfully does not appear in NRS 90.460, but in NRS 90.650, which sets forth the criminal
penalties for any violation of NRS chapter 90. NRS 90.650(1)(a) states that [a] person who willfully violates . .
. [a] provision of this chapter . . . is guilty of a category C felony and shall be punished as provided in NRS
193.130, or by a fine of not more than $100,000, or by both fine and the punishment provided in NRS 193.130,
for each violation.
to pay restitution jointly and severally in the amount of $130,500 to various investors in varying amounts.
DISCUSSION
[Headnote 1]
Appellants contend that jury instruction eleven erroneously defined willfully, thereby improperly making
the violation of NRS 90.460 a general, rather than a specific, intent crime. Despite the extensive arguments
advanced by appellants in the briefs and at oral argument, we conclude that the instruction was proper. We
have previously approved the instruction's definition of willfully in the context of general intent crimes,
namely child abuse and neglect. See Rice v. State, 113 Nev. 1300, 949 P.2d 262 (1997); Childers v. State, 100
Nev. 280, 680 P.2d 598 (1984). Further, our conclusion is in conformity with the majority of federal and state
courts that have considered the issue in reviewing the Uniform Securities Act. See Mueller v. Sullivan, 141 F.3d
1232, 1233-34 (7th Cir. 1998); People v. Clem, 114 Cal. Rptr. 359, 361 (Ct. App. 1974); State v. Dumke, 901
S.W.2d 100, 103 (Mo. Ct. App. 1995); State v. Irons, 574 N.W.2d 144, 149 (Neb. 1998); State v. Mueller, 549
N.W.2d 455, 464 (Wis. Ct. App. 1996). Because we conclude that NRS 90.460 is a general intent crime, the
instruction was not error.
Appellants contend that insufficient evidence was presented at trial to support their convictions for sale of
unregistered securities. Our standard of review is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Hutchins v. State, 110 Nev. 103, 107-08, 867 P.2d 1136, 1139 (1994) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
NRS 90.460 states that [i]t is unlawful for a person to offer to sell or sell any security in this state unless the
security is registered or the security or transaction is exempt under this chapter. NRS 90.530(11)(c) provides
that a transaction pursuant to an offer to sell securities of an issuer is exempt from the requirements of NRS
90.460 if [n]o commission or other similar compensation is paid or given, directly or indirectly, to a person,
other than a broker-dealer licensed or not required to be licensed under this chapter, for soliciting a prospective
purchaser in this state.
[Headnote 2]
Fullerton contends that the only evidence presented of commissions paid by him for the sale of unregistered
security dealt with counts III, VI, VIII and IX. He contends that because the state presented no evidence of
commissions paid in connection with the transactions alleged in the remaining seventeen
counts,
with the transactions alleged in the remaining seventeen counts, those counts were not proven beyond a
reasonable doubt. We agree. Because payment of a commission is a material element of the exemption to NRS
90.460 contained in NRS 90.530(11)(c), we conclude that the evidence was insufficient to convict Fullerton on
all counts except III, VI, VIII and IX, even when viewed in the light most favorable to the prosecution.
Hutchins, 110 Nev. at 107, 867 P.2d at 1139. In so holding, we expressly reject the state's contention that the
improper commissions on four stock sales vitiates the exemption covering all previous sales in the stock issue.
[Headnote 3]
Bennett contends that insufficient evidence supports her conviction on all twenty-one counts. While we agree
that the evidence in the record shows passive involvement with sale of the securities, for the most part, we
conclude that there is sufficient evidence, such as the evidence of the two finder's fees checks and the evidence
of her delivery of a stock certificate to an investor, for a rational trier of fact to conclude enough involvement by
Bennett to implicate her with Fullerton. We therefore affirm Bennett's convictions on counts III, VI, VIII and IX.
We conclude that the evidence on the remaining counts is insufficient to support a conviction. Hutchins, 110
Nev. at 107-08, 867 P.2d at 1139.
Bennett contends that the district court erred in denying her motions to sever. We conclude that this
contention lacks merit because Bennett has failed to carry the heavy burden of showing that the district court
abused its discretion in denying the motions. Amen v. State, 106 Nev. 749, 756, 801 P.2d 1354, 1359 (1990)
(stating that the decision to sever is left to the discretion of the trial court).
Appellants and the state agree that the district court erred in sentencing appellants to more than five years of
probation. See NRS 176A.500 (formerly NRS 176.215). We remand the probation sentence to the district court
for correction in conformity with NRS 176A.500(1)(b), which provides a five-year maximum. See NRS 176.555
(providing that [t]he court may correct an illegal sentence at any time); Wicker v. State, 111 Nev. 43, 888 P.2d
918 (1995).
[Headnote 4]
Appellants also contend that the district court erred in sentencing them to the suspended prison time, because
prison was not an option under NRS 90.650(2), which states that [a] person convicted of violating a regulation
or order under this chapter may be fined, but must not be imprisoned, if the person proves lack of knowledge
of the regulation or order."
knowledge of the regulation or order. We find this argument unpersuasive because appellants were convicted of
violating a provision of a statute, not a regulation or order. NRS 90.650(1)(a) states that [a] person who
willfully violates . . . [a] provision of this chapter . . . is guilty of a category C felony and shall be punished as
provided in NRS 193.130, or by a fine of not more than $100,000, or by both fine and the punishment provided
in NRS 193.130, for each violation. NRS 193.130(2)(c) provides that a person convicted of a category C felony
shall be sentenced to imprisonment in the state prison for a minimum term of not less than 1 year and a
maximum term of not more than 5 years.
Both appellants contend that the district court erred in answering the jury's questions, although only Bennett
made an objection. In light of our decision today, we need not address this issue because the district court's
response could have only affected the jury's deliberation regarding the counts which we reverse.
[Headnote 5]
Appellants contend that the district court's order of restitution is error because it improperly awarded double
recovery to the alleged victims. We conclude that the district court did not err, because the mandatory language
of NRS 90.650(1) states that, [i]n addition to any other penalty, the court shall order the person to pay
restitution. Nevertheless, in light of our partial reversal of appellants' convictions, restitution should only be
imposed on the four counts which we affirm. We therefore remand the issue to the district court for a
recalculation of the restitution amount.
[Headnote 6]
Finally, we conclude that the rest of appellants' contentions lack merit. Appellants did not object to the state's
deletion of a considerable portion of the indictment on the day of trial and therefore the issue of whether the state
improperly changed its theory of prosecution without notice has not been preserved for appellate consideration.
See Minton v. Board of Medical Examiners, 110 Nev. 1060, 1086, 881 P.2d 1339, 1357 (1994). We find
nothing in the record to support appellants' contention that cumulative error warrants reversal of the remaining
four counts. We likewise conclude that appellants' remaining contentions lack merit.
Accordingly, the judgment on the jury verdict is affirmed in part and reversed in part. We remand this case to
the district court for proceedings consistent with this opinion.
5

__________

5
The Honorable Deborah A. Agosti, Justice, voluntarily recused herself from the decision of this matter.
____________
116 Nev. 442, 442 (2000) Walker v. State
CHERYL ANN WALKER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32699
April 6, 2000 997 P.2d 803
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of first-degree murder.
Second Judicial District Court, Washoe County; Connie J. Steinheimer, Judge.
Defendant was convicted in the district court of one count of first-degree murder, and she appealed. The
supreme court held that testimony of victim's adult son that defendant had threatened victim with firearm on two
prior occasions, six and ten years prior to shooting, was both irrelevant and more prejudicial than probative.
[Rehearing denied September 11, 2000]
Michael R. Specchio, Public Defender, and John Reese Petty, Chief Deputy Public Defender, Washoe
1. Criminal Law.
A trial court deciding whether to admit evidence of the defendant's prior bad acts under the statutory exception for evidence
relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident must conduct a
Petrocelli hearing on the matter outside the presence of the jury and on the record to determine whether: (1) the incident is relevant to
the crime charged, (2) the act is proven by clear and convincing evidence, and (3) the probative value of the evidence is not
substantially outweighed by the danger of unfair prejudice. NRS 48.045(2).
2. Criminal Law.
The trial court's determination of whether to admit or exclude prior bad acts evidence will not be disturbed on appeal absent
manifest error.
3. Homicide.
Testimony of victim's adult son that defendant had threatened victim with firearm on two prior occasions, six and ten years prior to
shooting, was not relevant in murder prosecution, where prior incidents did not involve defendant firing weapon at victim. NRS
48.045(2).
4. Homicide.
Testimony of victim's adult son that defendant had threatened victim with firearm on two prior occasions, six and ten years prior to
shooting, was more prejudicial than probative, and thus was not admissible in murder prosecution. NRS 48.045(2).
OPINION
Per Curiam:
During the course of an argument in their Reno mobile home, Cheryl Ann Walker (Cheryl) shot and
killed her husband Anthony Walker (Anthony). At Cheryl's trial for first-degree murder, Anthony's son
was allowed to testify during the State's rebuttal that Cheryl had twice before threatened Anthony with a
firearm. However, these events occurred six and ten years prior to Anthony's death and did not involve
Cheryl's firing or attempting to fire the weapon at Anthony. At issue here is whether the evidence of these
prior bad acts was properly admitted. We conclude that the district court erred in admitting the prior bad act
evidence and remand for a new trial.
FACTS
In the early morning hours of September 19, 1997, Cheryl and her husband Anthony were heard arguing
outside of their mobile home in Reno. Eventually, they proceeded inside, and their argument continued. At
around 1:30 a.m., a gunshot was heard, and the argument ended.
Cheryl fled the scene and eventually went to a local bar. There, she did not appear drunk or upset, but did
tell the bartender that she had been arguing that night with her husband about money. Cheryl told the
bartender that she had waited until Anthony fell asleep, taken some money, and left.
The next morning, the bartender received a phone call from Cheryl, who was now quite upset and told
him that she had just found her husband lying dead on the floor of their trailer. Cheryl then called the police.
An autopsy revealed that Anthony died of a shotgun wound to the head.
At first, Cheryl maintained that she had not killed Anthony, but had left the trailer at around 9:30 p.m. to
spend the night with a friend after arguing with Anthony. However, in a videotaped interview given with
Cheryl's consent later that day, Cheryl retracted her earlier testimony and confessed to her personal
involvement with the murder.
In the interview, Cheryl made the following statements regarding the shooting. After returning to the
trailer later that evening, Cheryl and Anthony continued their earlier argument. Inside the trailer, Anthony
began striking Cheryl, but she was able to get away. As the argument continued, Anthony, who was now
sitting down, began to reach for a flare gun, which was capable of firing shotgun shells and was lying on a
nearby table. Cheryl, however, grabbed the flar gun,
ever, grabbed the flare gun, yelled for Anthony to get out, and stated that she had been kicked out for the last
time. Anthony responded that she had better kill him or he would kill her. Cheryl then threatened, Look, I'm
gonna count to ten, and you better fucking leave or I'll shoot you. After Anthony moved forward toward her,
Cheryl fired the gun, killing Anthony. After realizing what she had done, Cheryl fled in her truck and at some
point threw the flare gun out of the vehicle.
When asked by the police if she had acted in self-defense, Cheryl stated that she did not know and just
thought that Anthony was going to reach for the gun and kill her. Cheryl also stated that she did not realize she
had pulled the trigger.
At Cheryl's trial for first-degree murder in June 1998, and at the end of the State's case-in-chief, the court
conducted a brief Petrocelli hearing outside of the jury's presence to determine whether the State could introduce
certain evidence of Cheryl's prior bad acts. One of the State's proffered witnesses was Anthony Christopher
Walker, Jr. (Anthony Jr.), Anthony's nineteen-year-old son, who testified that he had seen Cheryl threaten to
kill Anthony on two separate occasions.
The first incident was approximately ten years before Anthony's death and occurred at a picnic that Anthony
Jr. was attending with Cheryl and Anthony.
1
Cheryl had slapped Anthony Jr. for not eating all of his food,
which in turn angered Anthony. In response, Cheryl retrieved a pistol from their truck, pointed it directly at
Anthony from about two feet away, and said, to the best of Anthony Jr.'s recollection, that she would kill
Anthony.
The second incident occurred six years earlier and involved a disagreement between Cheryl and Anthony
about Anthony's disciplining of Cheryl's youngest son.
2
Cheryl became angry and pointed a rifle at Anthony,
who was sitting on a couch, and said not to come closer or she would shoot and that she wanted money to give to
her kids.
After noting that the State had met its initial burden of showing the witness's reliability by clear and
convincing evidence, the district court ruled that the evidence was admissible once the issue of self-defense and
lack of intent and the common course of conduct between these two people become at issue. Further, the
district court stated that the prior acts were not so tenuous in age to preclude admission.
__________

1
Anthony Jr. testified that this first incident occurred eleven years before trial. Taking into account the nine
months between Anthony's murder and trial, the relevant age of the incident is roughly ten years.

2
Similar to the first incident, Anthony Jr. testified that the second incident occurred seven years before trial.
Taking into account the nine months between Anthony's murder and trial, the relevant age of the incident is
roughly six years.
district court stated that the prior acts were not so tenuous in age to preclude admission.
Cheryl then presented her defense. Cheryl offered testimony from witnesses who had previously seen
Anthony hit Cheryl or who had noticed injuries to Cheryl that suggested abuse. Additionally, Cheryl offered
expert testimony that she was suffering from battered woman syndrome at the time she shot Anthony, a condition
that occurs after a spouse is subjected to continuous psychological or physical abuse and that may lead an abused
spouse to perceive imminent danger or death even if no actual threat exists. After the expert testified, Cheryl
elected not to testify and the defense rested.
For its rebuttal case, in addition to Anthony Jr.'s aforementioned testimony, the State presented testimony
from a neighbor that Cheryl had struck Anthony on several occasions. The State also called its own psychiatrist
to testify that he disagreed with Cheryl's expert's conclusion regarding battered woman syndrome, noting that the
condition was not recognized in the psychiatric community as a treatable disease.
On the charge of first-degree murder, the jury found Cheryl guilty. She was then sentenced to a term of fifty
years in the Nevada State Prison with a consecutive fifty-year sentence for the use of a deadly weapon. Cheryl
now appeals on the grounds that Anthony Jr.'s testimony was improperly admitted.
DISCUSSION
Cheryl contends that the district court erred in admitting Anthony Jr.'s rebuttal testimony that Cheryl had
twice threatened Anthony in the past with a firearm.
3
Specifically, Cheryl argues that the testimony was not
relevant to Cheryl's intent at the time of the murder and constituted inadmissible evidence of Cheryl's prior bad
acts that was more prejudicial than probative. We agree.
We have often stated that the use of uncharged bad acts to convict a defendant is heavily disfavored in our
criminal justice system, because such bad acts are often irrelevant or prejudicial and force the accused to
defend against vague and unsubstantiated charges. See Berner v. State, 104 Nev. 695, 696-97, 765 P.2d 1144,
1145-46 (1988). The principal concern with admitting such acts is that the jury will be unduly influenced by the
evidence, and thus convict the accused because the jury believes the accused is a bad person. See id.
__________

3
Cheryl asserts numerous other contentions on appeal, including that the district court's instructions on the
elements of first-degree murder and on the reasonable doubt standard were improper. Because we conclude
that the admission of Anthony Jr.'s testimony regarding Cheryl's prior bad acts is reversible error, we need not
and do not reach these other issues.
However, in certain instances, admission of prior bad acts is appropriate. At issue here is whether NRS
48.045(2), which outlines several exceptions to the general rule of exclusion, was properly applied to admit the
evidence of Cheryl's prior bad acts. NRS 48.045(2) provides:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to
show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as
accident.
(Emphasis added.)
[Headnotes 1, 2]
A trial court deciding whether to admit such acts must conduct a hearing on the matter outside the presence
of the jury and on the record. See Petrocelli v. State, 101 Nev. 46, 51-52, 692 P.2d 503, 507-08 (1985)
(outlining procedure for admitting prior bad acts); Armstrong v. State, 110 Nev. 1322, 1323-24, 885 P.2d 600,
601 (1994) (requiring that district court finding be made on the record). At the hearing, the court must determine
whether (1) the incident is relevant to the crime charged; (2) the act is proven by clear and convincing
evidence; and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair
prejudice. Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997). The trial court's determination
of whether to admit or exclude such evidence will not be disturbed on appeal absent manifest error. See
Petrocelli, 101 Nev. at 52, 692 P.2d at 508.
[Headnote 3]
In this case, Anthony Jr. testified to two prior events involving Cheryl's pointing of a firearm at Anthony. The
first incident was approximately ten years before Anthony's death and occurred at a picnic Cheryl and Anthony
were attending. After getting into an argument, Cheryl pointed a pistol at Anthony and threatened to kill him.
The second incident occurred approximately six years before Anthony's death and involved another argument
between Cheryl and Anthony. As a result, Cheryl became angry and pointed a rifle at Anthony, telling him not to
come closer and that she wanted money for her kids. Although the State argues that these acts were relevant to
showing Cheryl's true intent at the time she shot Anthony, we conclude that they were improperly admitted
under NRS 48.045(2).
First, in evaluating the relevance of prior bad acts to the crime charged, we have consistently noted that
events remote in time from the charged incident have less relevance in proving later intent. See, e.g., Beck v.
State, 105 Nev. 910, 912, 784 P.2d 983, 984 (1989); Berner v. State, 104 Nev. 695, 697-98, 765 P.2d 1144,
1146 (1988). We conclude that the events here, which are six and ten years old, are clearly remote in time, and
thus are less relevant to Cheryl's intent at the time she shot Anthony.
Further, although the prior bad acts involve similar conduct toward the eventual victim in this case, we
conclude that there is a crucial distinction between Cheryl's prior conduct and the charged conduct. Namely,
Cheryl's prior acts do not involve the firing or attempted firing of the weapon at Anthony. Importantly, Cheryl
was tried for first-degree murder, a specific intent crime requiring, in addition to premeditation and deliberation,
willful action that we have said requires an intent to kill. See Byford v. State, 116 Nev. 215, 994 P.2d 700
(2000). Therefore, because the prior bad acts offered here do not clearly establish an intent to kill, but more
accurately show an intent to threaten, the logical relevance of the acts to show Cheryl's later intent is further
diminished.
Accordingly, we conclude that the two prior bad acts offered by Anthony Jr. have only minimal relevance to
Cheryl's intent at the time she shot Anthony.
[Headnote 4]
Next, in evaluating whether the probative value of the evidence is substantially outweighed by the danger of
prejudice, we reiterate that evidence of prior bad acts may unduly influence the jury and result in a conviction
based on the accused's propensity to commit a crime rather than on the State's ability to prove all the elements of
the crime. See Berner, 104 Nev. at 696-97, 765 P.2d at 1145-46. The acts here, Cheryl's twice pointing a gun at
Anthony during an argument, clearly cast Cheryl in a negative light, prejudicially suggesting that she has a
dangerous and criminal character. We therefore conclude that the danger of prejudice substantially outweighs
the probative value of the prior acts.
Accordingly, we conclude that the district court erred by admitting the evidence of Cheryl's prior bad acts.
CONCLUSION
Based on our conclusions that the prior acts were only minimally relevant to Cheryl's later intent and that
the danger of prejudice substantially outweighs the probative value of the prior acts, we hold that the district
court's admission of Anthony Jr.'s testimony was manifest error.
mony was manifest error. Further, because the shooting occurred during a heated argument in the course of an
abusive and tumultuous relationship and because a conviction of first-degree murder requires proof beyond a
reasonable doubt of willfulness, premeditation and deliberation, we cannot say that the error here was harmless
beyond a reasonable doubt. We therefore reverse the judgment of conviction and remand for a new trial in
accordance with the views expressed herein.
4

____________
116 Nev. 448, 448 (2000) Ochoa-Lopez v. Warden
JOSE ALVARO OCHOALOPEZ, Appellant, v. WARDEN, LOVELOCK CORRECTIONAL CENTER,
JOHN IGNACIO, Respondent.
No. 32718
April 6, 2000 997 P.2d 136
Appeal from an order of the district court denying appellant's post-conviction petition for a writ of habeas
corpus. Second Judicial District Court, Washoe County; Steven R. Kosach, Judge.
Defendant convicted on plea of guilty to trafficking of a controlled substance petitioned for a writ of habeas
corpus. The district court denied the petition, and defendant appealed. The supreme court held that violation of
the statute requiring a written plea agreement was harmless error.
Affirmed.
Karla K. Butko, Reno, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and
Terrence P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Failure to complete a written plea agreement, as required by statute, is not per se reversible error; rather, court will
determine if a defendant's guilty plea is valid even without the plea memorandum by looking at the totality of the
circumstances. NRS 174.035(6).
2. Criminal Law.
Violation of the statute requiring a written plea agreement was harmless error. Trial court thoroughly canvassed
defendant and correctly concluded that his guilty plea was voluntarily and knowingly entered. NRS 174.035(6).
__________

4
On remand, we note that the jury instructions outlined in our recent decisions in Byford v. State, 116
Nev. 215, 994 P.2d 700 (2000) and Boykins v. State, 116 Nev. 171, 995 P.2d 474 (2000) should be applied.
OPINION
Per Curiam:
This is an appeal from the district court's denial of a post-conviction petition for a writ of habeas corpus.
Appellant Jose Ochoa-Lopez was charged with the most serious level of trafficking of a controlled substance.
Appellant entered into plea negotiations with the State following a denial of his motion to suppress the seized
controlled substances. Appellant did not appeal his conviction directly, but filed this petition for a writ of
habeas corpus. Appellant argues that his guilty plea was not voluntarily or knowingly entered because the
district court accepted his plea even though there was not a written plea agreement, as required by NRS
174.035(6). We conclude, in looking at the totality of the circumstances, that the violation of NRS 174.035(6)
is harmless and not per se reversible error.
FACTS
In December 1994, after leaving Boomtown Casino at approximately 10:00 p.m., appellant was driving on
Interstate 80 when Trooper Mel Pecson of the Nevada Highway Patrol stopped him. Appellant had just
picked up the vehicle from acquaintances and did not own the vehicle or have it registered in his name.
Trooper Pecson observed the vehicle straddle both lanes of travel, as appellant attempted to change lanes.
Although appellant was not speeding, Trooper Pecson stopped him to determine if he was possibly
intoxicated. Appellant was not under the influence of alcohol.
A check on the license plate indicated that it may have been a fictitious registration, an unregistered
vehicle, or possibly a stolen vehicle. Appellant was unable to produce a driver's license or registration for the
vehicle and identified himself to Trooper Pecson as Jose Mariscal. Trooper Pecson was unable to find any
records matching this name, and appellant did not give the officer any other identifying information. Trooper
Pecson then arrested appellant until a positive identity could be ascertained.
Trooper Pecson then requested a tow truck and proceeded to complete a vehicle report before the tow
truck arrived. The vehicle report included a section entitled vehicle inventory, which required Trooper
Pecson to raise the hood of the car and locate the battery, motor, and transmission. After lifting the hood,
Trooper Pecson located a rag inside the engine compartment, which appeared to have been purposely placed
on the right front quarter panel close to the headlight area.
quarter panel close to the headlight area. Trooper Pecson pulled out the rag, which contained something hard
and lumpy inside and was wrapped in at least two plastic shopping bags. Trooper Pecson's training in
identification and packaging of narcotics led him to suspect that the rag was a method of concealing controlled
substances. Further inspection revealed that the substance was wrapped in duct tape. Trooper Pecson believed
this to be a controlled substance, so he took the substance and drove the vehicle to the highway patrol office to
perform a presumptive test. The substance was later identified as at least 28 grams of methamphetamine.
Appellant pleaded not guilty to the charge of trafficking in controlled substances and moved to suppress the
narcotics obtained by Trooper Pecson during the vehicle inventory. After conducting a hearing on the motion to
suppress the narcotics, the district court denied appellant's motion to suppress.
Prior to trial, appellant entered a plea of guilty to a lesser charge, with both parties remaining free to argue
what type of sentence appellant was to receive. The district court canvassed appellant regarding the rights he was
waiving by pleading guilty to the lesser charge. At the sentencing hearing, appellant moved to withdraw his
previously entered guilty plea, advising the court that he did not trust his counsel. The district court denied this
motion and sentenced appellant to fifteen years in the Nevada State Prison and a fine of $100,000.00.
Appellant did not appeal, but instead filed a petition for a writ of habeas corpus. The district court ruled that
appellant's claim that the guilty plea was not voluntarily or knowingly entered, was belied by the record and
summarily denied this claim for relief. After an evidentiary hearing on the petition for post-conviction relief, the
district court denied the petition and entered factual findings. This appeal followed.
DISCUSSION
[Headnote 1]
Appellant argues that his guilty plea was not voluntarily or knowingly entered because the district court
accepted his plea even though there was not a written plea agreement, as required by NRS 174.035(6).
1
Appellant essentially argues that any violation of NRS 174.035{6) is per se reversible error.
__________

1
A defendant may not enter a plea of guilty or guilty but mentally ill pursuant to a plea bargain for an
offense punishable as a felony for which:
(a) Probation is not allowed; or
(b) The maximum prison sentence is more than 10 years,
unless the plea bargain is set forth in writing and signed by the defendant, the defendant's attorney, if he
is represented by counsel, and the prosecuting attorney.
tion of NRS 174.035(6) is per se reversible error. We hold that the failure to complete a written plea agreement,
as required by NRS 174.035(6), is not per se reversible error.
[Headnote 2]
Although NRS 174.035(6) does require a written plea memorandum, this court will determine if a
defendant's guilty plea is valid even without the plea memorandum by looking at the totality of the
circumstances, including the failure to satisfy NRS 174.035(6). See Bryant v. State, 102 Nev. 268, 271, 721 P.2d
364, 367 (1986) (holding that reviewing court should look to the totality of the circumstances to determine if a
guilty plea is valid). During the entry of the plea by appellant, the district court extensively canvassed appellant
regarding his right to a trial by jury that he was waiving and ensured that appellant knew that matters of
sentencing were left completely to the court. The district court also ensured that appellant completely understood
the elements of the charge to which he was pleading, the penalties that could be imposed for the charge, and that
appellant was satisfied with the legal services rendered by his attorney.
We conclude that the district court thoroughly canvassed appellant and correctly concluded that his guilty
plea was voluntarily and knowingly entered within the contemplation of Bryant. While it is certainly preferable
that a guilty plea memorandum be executed as required by NRS 174.035(6), we decline to hold that the failure to
do so is per se reversible error. Thus, in looking at the totality of the circumstances, we conclude that the
violation of NRS 174.035(6) was harmless error.
2

__________

2
Appellant contends that a number of other errors occurred: that appellant did not receive effective assistance
of counsel because appellant was not informed of his right to appeal, and he did not consent to forego an appeal;
that appellant's guilty plea was not knowing or voluntary because appellant was not informed that any sentence
in the present case would have to be served consecutively to his sentence in a parole revocation case; and that
appellant is entitled to a new sentencing hearing because he provided substantial assistance to law enforcement
officials. After a thorough review of the entire record and consideration of the relevant law, we conclude that
none of these contentions has merit.
____________
116 Nev. 452, 452 (2000) Lee v. State
GARRY ROBERT LEE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 33081
April 6, 2000 997 P.2d 138
Appeal from a judgment of conviction, pursuant to a plea of no contest, of one count of involuntary
manslaughter. Appellant preserved his right to appeal the denial of his motion to dismiss the original charges,
which consisted of one count of reckless driving causing death and two counts of reckless driving causing
substantial bodily harm. Sixth Judicial District Court, Pershing County; Richard Wagner, Judge.
Defendant pleaded no contest in the district court to one count of involuntary manslaughter under felony
reckless driving statute, and he appealed. The supreme court held that access road constructed on federal
property pursuant to right-of-way granted by Bureau of Land Management (BLM) was not public highway, and
thus defendant who killed oncoming motorist while driving on wrong side of access road could not be convicted
of felony reckless driving causing death.
Remanded with instructions.
Lamond R. Mills & Associates, LLC, Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Belinda Quilici, District Attorney, and John J.
Kadlic, Deputy District Attorney, Pershing County, for Respondent.
1. Criminal Law.
The construction of a statute is a question of law, which the supreme court reviews de novo.
2. Automobiles.
Access road constructed by mining corporation on federal property pursuant to right-of-way granted by Bureau of Land
Management (BLM) was not public highway, and thus defendant who killed oncoming motorist while driving on wrong side of
access road could not be convicted of felony reckless driving causing death. NRS 484.377(2).
3. Automobiles.
A road does not become dedicated to a public authority for purposes of definition of highway in traffic statutes simply because
the public has access to it. NRS 484.065.
4. Statutes.
The supreme court is not empowered to go beyond the face of a statute to lend it a construction contrary to its clear meaning.
5. Automobiles.
A road constructed on federal property pursuant to a right-of-way granted by the Bureau of Land Management (BLM) does not
constitute a "highway" for purposes of the traffic statutes unless the road has been dedicated to a public
authority.
116 Nev. 452, 453 (2000) Lee v. State
a highway for purposes of the traffic statutes unless the road has been dedicated to a public authority. NRS 484.065.
OPINION
Per Curiam:
The issue in this case is whether an access road constructed by a mining corporation on federal property
pursuant to a right-of-way granted by the Bureau of Land Management (BLM) constitutes a highway
for purposes of NRS chapter 484. We conclude that it does not.
FACTS
On June 19, 1996, appellant Garry Robert Lee exited the Coeur-Rochester Mine and drove his Peterbilt
tractor and tanker trailer on an access road that runs between the mine and Limerick Canyon Road located
in Pershing County. Lee had been driving on the wrong side of the road when he collided with another
vehicle coming in the opposite direction, killing the driver and injuring the driver's wife and daughter. The
mining access road where the incident occurred is located on federal property and was built and maintained
by Coeur-Rochester, Inc., pursuant to a non-exclusive right-of-way interest granted by the BLM.
The State charged Lee with one count of reckless driving causing death and two counts of reckless driving
causing substantial bodily harm, all in violation of NRS 484.377(2). Lee filed a motion to dismiss the charges
contending that the reckless driving statute does not apply to the mining access road where the incident
occurred because it does not constitute a highway for purposes of NRS chapter 484. The district court
denied Lee's motion to dismiss. Lee pleaded no contest
1
to one count of involuntary manslaughter, but, in
an agreement with the State, preserved the right to appeal the district court's denial of his motion to dismiss
the original charges.
DISCUSSION
[Headnote 1]
The construction of a statute is a question of law, which this court reviews de novo. Anthony Lee R., a
Minor v. State, 113 Nev. 1406, 1414, 952 P.2d 1, 6 {1997).
__________

1
The district court accepted Lee's no contest plea and made a finding of guilt based upon the plea.
116 Nev. 452, 454 (2000) Lee v. State
Nev. 1406, 1414, 952 P.2d 1, 6 (1997). The felony reckless driving statute itself does not specifically limit its
application to certain kinds of roadways. See NRS 484.377(2). However, the provisions of NRS chapter 484
are applicable and uniform throughout this state on all highways to which the public has a right of access or to
which persons have access as invitees or licensees. NRS 484.777(1) (emphasis added); see Elliott v. Mallory
Electric Corp., 93 Nev. 580, 583, 571 P.2d 397, 399 (1977) (recognizing that the applicability of the provisions
of NRS chapter 484 are generally limited to highways as defined by NRS 484.065).
[Headnote 2]
For the purposes of NRS chapter 484, a highway is defined as the entire width between the boundary lines
of every way dedicated to a public authority when any part of the way is open to the use of the public for
purposes of vehicular traffic, whether or not the public authority is maintaining the way. NRS 484.065. The
parties do not dispute that the road constructed by Coeur-Rochester, Inc., pursuant to the non-exclusive
right-of-way interest, is open to the public for purposes of vehicular traffic. The determining issue in this case is
whether the road in question is dedicated to a public authority.
[Headnotes 3, 4]
A public authority is defined as the department of transportation or the local authority having jurisdiction
to enact laws or ordinances or adopt regulations relating to traffic over a highway. NRS 484.126. Since the
mining access road where the incident occurred in this case was never dedicated to a public authority, we
conclude that it does not meet the statutory definition of a highway under NRS 484.065. We determine that a
road does not become dedicated to a public authority for purposes of NRS chapter 484 simply because the
public has access to it. This court has recognized that it is not empowered to go beyond the face of a statute to
lend it a construction contrary to its clear meaning. Union Plaza Hotel v. Jackson, 101 Nev. 733, 736, 709 P.2d
1020, 1022 (1985); see also Thompson v. District Court, 100 Nev. 352, 354, 683 P.2d 17, 19 (1984) (If a
statute is clear on its face a court cannot go beyond the language of the statute in determining the legislature's
intent.).
The broadening of the scope of the statutory definition of highway contained in NRS 484.065 is a function
of the legislature, not this court. See Washoe Medical Ctr. v. Reliance Ins. Co., 112 Nev. 494, 498, 915 P.2d
288, 290 (1996) (concluding that broadening the scope of Nevada's hospital lien statute is a function of the
legislature, not this court.). If the legislature had intended that the felony reckless driving statute
apply to roads not dedicated to the public,
116 Nev. 452, 455 (2000) Lee v. State
intended that the felony reckless driving statute apply to roads not dedicated to the public, but to which the
public has access, we conclude that it could and would have done so. In 1983, for example, the legislature
expanded the applicability of Nevada's driving under the influence statute beyond the statutory definition of
highway contained in NRS 484.065. 1983 Nev. Stat., ch. 426, 8, at 1068. NRS 484.379(2) specifically
prohibits driving under the influence on a highway or on premises to which the public has access.
[Headnote 5]
In sum, we conclude that a road constructed on federal property pursuant to a right-of-way granted by the
BLM does not constitute a highway for purposes of NRS chapter 484 unless the road has been dedicated to a
public authority. Since the access road where the incident occurred in this case was never dedicated to a public
authority, the district court should have granted Lee's motion to dismiss the charges of felony reckless driving.
Therefore, we remand this case to the district court with instructions that Lee must be given the opportunity to
withdraw his plea pursuant to NRS 174.035(3).
2

____________
116 Nev. 455, 455 (2000) Frantz v. Johnson
MICHELLE FRANTZ, ANTONIO ACCORNERO, Individually, PLASTIC GRAPHICS, INC., a California
Corporation, WESTERN BADGE & TROPHY CO., a California Corporation, WESLEY RU,
Individually and as an Officer of Western Badge & Trophy, and ACTION GRAPHICS, a Nevada
Partnership, Consisting of MICHELLE FRANTZ, ANTONIO ACCORNERO, and WESLEY RU,
Appellants, v. CHARLES R. JOHNSON, dba PLASTIC PRINT-A-CARD CO., dba JOHNSON
BUSINESS MACHINES, Respondent.
No. 29588
May 4, 2000 999 P.2d 351
Appeal from a judgment pursuant to a bench trial. Eighth Judicial District Court, Clark County; James A.
Brennan, Senior Judge.
__________

2
NRS 174.035(3) states:
With the consent of the court and the district attorney, a defendant may enter a conditional plea of guilty,
guilty but mentally ill or nolo contendere, reserving in writing the right, on appeal from the judgment, to
a review of the adverse determination of any specified pretrial motion. A defendant who prevails on
appeal must be allowed to withdraw the plea.
........................................
Distributor of plastic gaming cards brought action under the Uniform Trade Secrets Act (UTSA), against
manufacturer and distributor's former sales manager, alleging misappropriation of trade secrets after the
manufacturer hired the sales manager, and defendants counterclaimed for lost wages and a California judgment.
After a bench trial, the district court awarded compensatory and punitive damages to distributor, offset by the
lost wages and money judgment owed to defendants. Defendants appealed. The supreme court held that: (1) the
Act displaced the distributor's common law tort claims; (2) distributor's customer and pricing information
constituted trade secrets; (3) evidence established the causation element of misappropriation of trade secrets;
and (4) trial court abused its discretion when calculating compensatory damages, after having limited defendants'
liability to the distributor's losses occurring within eighteen months after sales manager left her employment with
distributor.
Affirmed in part, reversed in part, and remanded.
Thorndal Armstrong Delk Balkenbush & Eisinger and Brian K. Terry, Las Vegas, for Appellants.
Bill C. Hammer, Ltd., Las Vegas, for Respondent.
Supreme court could consider, sua sponte, whether the Uniform Trade Secrets Act (UTSA) precluded some of the causes of action
upon which the trial court based its award in action for misappropriation of trade secrets. NRS 600A.090.
2. Torts.
The Uniform Trade Secrets Act (UTSA) does not provide a blanket preemption to all claims that arise from a factual circumstance
possibly involving a trade secret. There may be future instances where a plaintiff will be able to assert tort claims, including intentional
interference with prospective advantage and intentional interference with existing contract, that do not depend on the information at
issue being deemed a trade secret, and thus are not precluded by the UTSA. NRS 600A.090.
3. Conspiracy; Implied and Constructive Contracts; Torts.
Uniform Trade Secrets Act (UTSA) precluded distributor of plastic gaming cards from bringing common law causes of action for
misappropriation of confidential information, breach of fiduciary duty, intentional interference with contractual relations, intentional
interference with prospective advantage, the tort of breach of the covenant of good faith and fair dealing, civil conspiracy, and unjust
enrichment against its former sales manager and its former manufacturer, where the causes of action arose from a single factual
episode, namely misappropriation of bidding and pricing information. NRS 600A.090.
4. Master and Servant; Torts.
Uniform Trade Secrets Act (UTSA) did not displace the claim, by distributor of plastic gaming cards, against its former sales
manager and its former manufacturer for breach of the implied covenant of good faith and fair dealing, where the claim was grounded
in contract, even though the contractual remedy was based on misappropriation of trade secrets.
........................................
the contractual remedy was based on misappropriation of trade secrets. NRS 600A.090(2)(a).
5. Contracts.
An implied covenant of good faith and fair dealing exists in every contract and essentially forbids arbitrary, unfair acts by one
party that disadvantage the other.
Error in grounding the liability of former employee of, and former manufacturer for, distributor of plastic gaming cards in common
law causes of action that were displaced by the Uniform Trade Secrets Act (UTSA) was harmless. The Act merely codified the
common law elements of misappropriation of confidential information of which distributor pleaded and proffered sufficient
circumstantial evidence at trial. NRS 600A.090.
7. Torts.
The elements of a misappropriation of trade secrets claim include: (1) a valuable trade secret; (2) misappropriation of the trade
secret through use, disclosure, or nondisclosure of use of the trade secret; and (3) the requirement that the misappropriation be
wrongful because it was made in breach of an express or implied contract or by a party with a duty not to disclose.
8. Torts.
The determination of whether corporate information, such as customer and pricing information, is a trade secret is a question for
the finder of fact.
9. Master and Servant; Torts.
Factors to be considered when determining whether corporate information, such as customer and pricing information, is a trade
secret include: (1) extent to which the information is known outside of the business and the ease or difficulty with which the acquired
information could be properly acquired by others, (2) whether the information was confidential or secret, (3) extent and manner in
which employer guarded the secrecy of the information, and (4) former employee's knowledge of customer's buying habits and other
customer data and whether this information is known by employer's competitors.
10. Torts.
Not every customer and pricing list will be protected as a trade secret.
11. Torts.
Customer and pricing information for distributor of plastic gaming cards were trade secrets under the Uniform Trade Secrets Act
(UTSA), where the information was extremely confidential, its secrecy was guarded, and it was not readily available to others because
the plastic gaming card industry was highly specialized. NRS 600A.030(5).
12. Torts.
Direct evidence that customers ceased doing business with distributor of plastic gaming cards because of former employee's and
former manufacturer's conduct was not necessary to establish the causation element of misappropriation of trade secrets under the
Uniform Trade Secrets Act (UTSA), which could be established by indirect circumstantial evidence that employee and manufacturer
harmed the distributor through unfair and illegal tactics. NRS 600A.010 et seq.
Causation element of misappropriation of trade secrets is a question for the finder of fact that will not be overturned unless clearly
erroneous.
........................................
14. Torts.
Causation element of misappropriation of trade secrets may be inferred from the circumstantial evidence presented at trial.
15. Torts.
Evidence that after sales manager left distributor of plastic gaming cards and joined distributor's former manufacturer, distributor's
pricing lists were missing, it lost 40% of its card sales, and sales manager sent numerous faxes and letters to distributor's customers
stating she could offer more competitive pricing and that she worked for a direct manufacturer, established that misappropriation
of trade secrets caused distributor's loss of customers, as element of claim under Uniform Trade Secrets Act (UTSA). NRS 600A.010 et
seq.
16. Torts.
Evidence established that manufacturer, and one of its owners, misappropriated trade secrets of distributor of plastic gaming cards
after hiring distributor's sales manager, thereby causing damage to distributor in violation of Uniform Trade Secrets Act (UTSA). One
employee of manufacturer testified that owner said he intended to take all of distributor's customers, and another employee testified
that owner had asked him to use his knowledge of the pricing structure and customer base of the employee's former employer to sell for
the manufacturer. NRS 600A.010 et seq.
17. Corporations.
Officers' and managers' tortious acts committed within the scope of their employment are attributable to the corporation as a
matter of law.
18. Torts.
Evidence established that one owner of manufacturer, and owner's badge business, misappropriated trade secrets of distributor of
plastic gaming cards, thereby causing damage to distributor in violation of Uniform Trade Secrets Act (UTSA), after manufacturer
hired distributor's sales manager. Customer's purchasing agent testified that sales manager told her sales manager was unable to take
orders but that owner could do so, and owner signed expense reimbursement check for supplies for trade show at which sales manager
solicited distributor's customers. NRS 600A.010 et seq.
19. Damages.
In cases where a district court properly limits liability to a specified period of time, it is an abuse of discretion to consider losses
outside this time period in calculating damages.
20. Damages.
After limiting manufacturer's and sales manager's liability to distributor of plastic gaming cards, in action for misappropriation of
trade secrets in violation of Uniform Trade Secrets Act (UTSA), to distributor's losses occurring within eighteen months after sales
manager left her employment with distributor, trial court abused its discretion by applying a pro rata share equivalent to eighteen
months of loss for each of distributor's casino accounts, regardless of whether the loss occurred within the specific eighteen-month
period. NRS 600A.010 et seq.
21. Damages.
Evidence that plastic gaming card distributor's former sales manager took distributor's confidential customer and pricing
information with her when she joined distributor's former manufacturer, that she sent faxes to all of distributor's customers announcing
that distributor did not manufacture its own cards, and that manufacturer planned to take all of distributor's customers in violation of
oral promise to distributor, established malice,
........................................
lished malice, as required for award of punitive damages in action for misappropriation of trade secrets under the Uniform Trade
Secrets Act (UTSA). NRS 42.005, 600A.050(2).
A district court's award of attorney fees will not be disturbed on appeal absent a manifest abuse of discretion.
23. Costs.
It is an abuse of discretion to award attorney fees without a statutory basis for doing so.
24. Costs.
Statute authorizing award of attorney fees to the prevailing party when another party has alleged a groundless claim that is not
supported by any credible evidence at trial does not permit an award of attorney fees for acting maliciously or engaging in
unacceptable discovery tactics. NRS 18.010(2)(b).
25. Costs.
A counterclaim cannot be without reasonable ground or frivolous, as basis for statutory attorney fee award to the opposing
party, when the party asserting the counterclaim actually prevails on the counterclaim. NRS 18.010(2)(b).
Trial court's error was harmless in relying on general attorney fee statute as basis for awarding attorney fees to plaintiff plastic
gaming card distributor in action for misappropriation of trade secrets under the Uniform Trade Secrets Act (UTSA), though defendant
manufacturer and sales manager had prevailed on their counterclaims for wages lost and payment of a California judgment, where the
Act itself provided for the attorney fee award, based on defendants' willful and malicious misappropriation. NRS 18.010(2)(b),
600A.060(3).
Before Rose, C. J., Shearing and Becker, JJ.
OPINION
Per Curiam:
SUMMARY
This case addresses, among other issues, Nevada's Uniform Trade Secrets Act (the UTSA), codified at
NRS 600A.010-.100. The underlying dispute arose in 1990, when Michelle Frantz (Frantz), a sales
manager for Johnson Business Machines (JBM), a Las Vegas distributor of plastic gaming cards, decided
to seek employment with JBM's card manufacturer, Plastic Graphics, Inc. (Plastic). Plastic was owned by
Wesley Ru (Ru) and Antonio Accornero (Accornero); Ru and Accornero also owned a badge and button
business called Western Badge & Trophy (Western) (hereinafter collectively referred to as appellants).
After Frantz's departure from JBM, its profits spiraled downward. Because JBM believed Frantz had
stolen its trade secrets
........................................
to assist Plastic in misappropriating JBM's customers, JBM filed suit against appellants seeking compensatory
damages, punitive damages, and attorney fees and costs based on numerous causes of action.
After a bench trial, the district court awarded JBM compensatory damages, punitive damages, and attorney
fees and costs. Appellants filed this timely appeal alleging several instances of error. We conclude that the
district court erred in calculating compensatory damages and in failing to consider NRS 600A.050(2) before
awarding punitive damages. We therefore vacate the district court's award of compensatory and punitive
damages, and reverse and remand this matter for recalculation of damages.
FACTS
JBM is a family-owned business founded by Charles R. Johnson (Charles) in Las Vegas, Nevada. JBM
sold printed plastic cards with personalized embossments that were purchased by casinos and used as VIP and
slot machine player tracking cards.
In 1987, Charles hired Frantz as a salesperson for JBM. Frantz was an at-will employee and was not
required to sign a covenant-not-to-compete contract. Charles testified that he taught Frantz everything about
the plastic card business. Eventually, Frantz was promoted to sales manager of JBM. In addition to Frantz,
JBM had two other employees: Charles's wife, Barbara Johnson, and machine manager Steve Larsen
(Larsen).
Throughout the years, Charles testified that he and Frantz developed a trusting relationship, and Charles
gave Frantz keys to the offices, security codes to the building, and access to customer and pricing lists. Charles
further testified that the aforementioned customer information and pricing lists were secured in file cabinets
and protected as a trade secret. Charles's testimony was corroborated by John Luogo (Luogo), vice president
of sales for another plastic card company, who stated in his deposition that bid and pricing information and
customer lists are proprietary, confidential information in the plastic card industry.
According to Charles, another confidential aspect of JBM's business was the fact that JBM did not
manufacture the plastic cards that it sold. In order to protect this confidential information, JBM required
Plastic, its manufacturer, to ship the cards directly to JBM where the cards were relabeled and reboxed before
being distributed to JBM's casino accounts. Additionally, Charles testified that before JBM entered into a
contract with Plastic to manufacture JBM's cards, Accornero, an owner of Plastic, orally promised Charles that
he would not solicit JBM's customers under any circumstances.
........................................
under any circumstances. This was an alleged promise that Accornero would eventually break.
In October 1990, Accornero hired Frantz as a salesperson and began competing against JBM in the plastic
card industry. Frantz testified that after she began working for Plastic, she went to several hotels to talk to people
with whom she had established a rapport. Frantz further testified that she sent out numerous letters and faxes
announcing that she now worked for Plastic, the direct representative of the manufacturer and that she could
offer more competitive pricing and guaranteed delivery times.
Shortly after Frantz's departure, Larsen contacted all of JBM's customers to try to establish a business rapport
and to inform them that Frantz had left JBM. Larsen testified that he had difficulties with the purchasing
representatives of some casinos and that they were negative or hostile. Larsen further testified that after Frantz
left, JBM lost approximately 40% of its card sales and 30% of its machine sales to Plastic. Moreover, Larsen
testified that although he did not see Frantz take any customer or pricing lists, several lists were missing after
Frantz's departure.
In October 1990, Frantz received the Riverboat, Showboat, and Harrah's accounts by underbidding JBM.
Thereafter, Frantz was served with notice that JBM was seeking a temporary restraining order (TRO) to
prevent her from directly soliciting JBM's customers. The TRO was granted and became effective November 7,
1990. Frantz testified that post-TRO she never contacted any of JBM's customers to solicit their business.
However, Frantz further testified that she followed through on the Harrah's, Riverboat, and Showboat orders that
were arranged prior to the TRO.
Despite Frantz's testimony that she complied with the TRO, JBM alleged that Frantz conspired with Ru and
Accornero to avoid the court order by referring sales to Ru. Martha Kehn (Kehn), a purchasing agent for
Boyd Properties, testified that sometime after Frantz left JBM, Frantz contacted her and told her that although
Frantz could not take orders, Ru would take care of anything she needed. Additionally, Kehn testified that
Frantz told her that JBM had an outside supplier of plastic cards.
JBM further alleges that Frantz's phone records indicate that she did not comply with the TRO. According to
these records, Frantz made 195 calls to Western from her home and 48 calls to Promotional Graphics, another
business entity owned by Ru and Accornero, between December 5, 1990, and October 17, 1991.
At the end of 1990, Frantz became an independent contractor, rather than an employee of Plastic, and
continued to sell for Western and Promotional Graphics. However, Frantz's sales for Western were
disappointing. Consequently, in April 1991 Plastic allegedly terminated its relationship with Frantz.
........................................
Thereafter, Frantz tried to establish her own business called Action Graphics. Frantz was unsuccessful and
eventually filed for unemployment. When Frantz's unemployment claim was denied, Plastic agreed to pay her
severance until she could find alternate employment. Frantz testified that, during this period of time, she was not
attempting to sell cards for Plastic. Plastic, however, paid Frantz $3,000.00 per month allegedly as severance
pay until August 1991 and required her to submit Action Graphics' invoices in order to receive payment. In
October 1991, Frantz obtained a retail sales position and ceased working in the plastic card industry.
On May 1, 1991, JBM successfully pursued a preliminary injunction against Frantz. The district court
granted the injunction finding that Frantz's conduct was unethical and violated her duties as an agent for JBM. In
addition to seeking an injunction, JBM sued appellants for the following causes of action: (1) misappropriation
of confidential information; (2) breach of fiduciary duty; (3) interference with prospective economic advantage;
(4) fraud; (5) misrepresentation; (6) unjust enrichment; and (7) civil conspiracy.
At trial, JBM presented expert testimony on damages from its expert witness, Donald McGhie (McGhie).
McGhie is a certified public accountant and has worked as a chief operating officer at Bally's Las Vegas.
McGhie's estimation of damages was based on the number of player tracking cards that he calculated were
utilized by slot machines in various casinos. McGhie concluded that there was a 10:1 ratio, namely that ten
player tracking cards were sold for each slot machine per month. McGhie used invoices from four different
casinos to calculate this figure: (1) JBM's invoices from the Stardust from 1989-94; (2) Faraday's (one of JBM's
competitors) invoices from the Mirage from 1992-94; (3) Plastic's invoices from the Showboat, Atlantic City
from 1989-90; and (4) Plastic's invoices from the Riverboat, Reno from 1989-90.
1

McGhie testified that his goal in calculating the 10:1 ratio was to find a method by which he could project
the lost profit of the thirteen casino accounts that JBM claimed that it lost to Plastic. After coming up with the
10:1 ratio, McGhie used JBM's 1990 records from the Stardust to calculate a gross profit percentage for both
magnetic and Hollerith plastic cards
__________

1
Specifically, the card ratio was based on the following time periods and numbers: From 1992-94, Faraday
sold 693,000 cards to the Mirage, averaging eight cards per slot machine. From 1989-94, JBM sold 1.5 million
cards to the Stardust, averaging ten cards per slot machine. From 1989-91, over a seventeen-month period,
Plastic sold 96,000 cards to the Riverboat, averaging twelve cards per slot machine. From 1989-91, over a
sixteen-month period, Plastic sold 334,000 cards to the Riverboat, averaging twelve cards per slot machine.
........................................
both magnetic and Hollerith plastic cards,
2
totaling 18.86% and 34.68%, respectively. McGhie then calculated
the losses associated with thirteen casinos that occurred between 1990-95: (1) the Golden Nugget, loss sustained
from 1990-95; (2) the Showboat, loss sustained from 1990-94; (3) the Eldorado, the Riverboat, and the Mirage,
losses sustained from 1990-95; (4) the Goldstrike, loss sustained from 1990-93; (5) Circus Circus, Excalibur,
Slots of Fun, Luxor, Colorado Belle, and the Edgewater, losses sustained in 1993; and (6) the Silver Legacy,
Reno, loss sustained in 1995.
Further, McGhie calculated JBM's losses associated with the reduced cost of Hollerith punching, loss of
profit from the sale of machines, the cost of reengineering the plastic card artwork, and the opportunity cost of
not getting a new warehouse built. In sum, McGhie testified that the loss of profit from plastic card sales was
$411,042.00 and the loss of profits from accounts where there was a reduction in sales price amounted to
$566,016.00.
In making the aforementioned calculations, McGhie admitted that he assumed that JBM's losses resulted
from appellants' conduct. McGhie testified that he did not contact any of the thirteen casinos to see why they had
stopped doing business with JBM. JBM alleges, however, that causation can be inferred from appellants'
aforementioned conduct and from Accornero's deposition, where he stated that he intended to compete against
JBM and would do so by taking its customers. Additionally, JBM alleges that causation can be inferred from the
fact that Accornero told a former Plastic employee, Terry Malan (Malan), that Accornero was going to put
JBM out of business by taking all of its customers.
After a ten-day bench trial, the district court entered a judgment in favor of JBM and issued sixty pages of
findings of fact and conclusions of law. The district court awarded JBM $222,014.55 for lost profits, but
explicitly limited the period of loss to eighteen months from Frantz's departure. The district court also awarded
JBM $47,612.75 for price reduction on plastic cards, business machines, and Hollerith punching services.
Further, the district court awarded JBM the following punitive damages against each defendant: (1)
Frantz$4,000.00; (2) Accornero$50,000.00; (3) Plastic Graphics$50,000.00; (4) Ru$25,000.00; and
(5) Western Badge$25,000.00. Finally, JBM was awarded $160,000.00 in attorney fees pursuant to NRS
600A.060 or NRS 18.010(2)(b), $15,779.00 in expenses, and $15,481.31 in costs. This judgment was reduced to
satisfy Frantz's counterclaim for wages owed to her by JBM and to satisfy Plastic's
counterclaim seeking satisfaction of a California judgment against JBM.
__________

2
A Hollerith card is a card containing customer information in a binary code that is punched with rectangular
holes through a plastic card. A magnetic card is a card that contains customer information in a magnetic strip.
........................................
Frantz's counterclaim for wages owed to her by JBM and to satisfy Plastic's counterclaim seeking satisfaction of
a California judgment against JBM.
Appellants filed this timely appeal alleging numerous instances of error, including that the district court erred
in relying on McGhie's testimony, in awarding attorney fees, and in granting punitive damages. Further,
appellants contend that there was insufficient evidence of causation. We agree with appellants that the district
court erred in calculating damages and in failing to consider NRS 600A.050(2) in awarding punitive damages.
Accordingly, although we affirm the order of the district court in all other respects, we vacate the district court's
award of compensatory and punitive damages, and remand this matter to the district court for recalculation of
such damages.
DISCUSSION
[Headnote 1]
Preliminarily, before our discussion of appellants' contentions on appeal, we address the issue of the
parties' and the district court's failure to apply the UTSA, specifically NRS 600A.090(2)(b)a controlling
statute that precludes some of the causes of action upon which the district court based its award. See Bradley v.
Romeo, 102 Nev. 103, 105, 716 P.2d 227, 228 (1986) (The ability of this court to consider relevant issues sua
sponte in order to prevent plain error is well established . . . . Such is the case where a statute which is clearly
controlling was not applied by the trial court.) (citation omitted).
I. The Nevada Uniform Trade Secrets Act
NRS 600A.090 of the Nevada Uniform Trade Secrets Act, titled Effects of chapter on other law and
remedies, provides that:
1. Except as otherwise provided in subsection 2, this chapter displaces conflicting tort,
restitutionary, and other law of this state providing civil remedies for misappropriation of a trade secret.
2. This chapter does not affect:
(a) Contractual remedies, whether or not based upon misappropriation of a trade secret;
(b) Other civil remedies that are not based upon misappropriation of a trade secret; or
(c) Except as otherwise provided in NRS 600A.035, criminal sanctions, whether or not based upon
misappropriation of a trade secret.
(Emphasis added.) The plain language of NRS 600A.090 precludes a plaintiff from bringing a tort or
restitutionary action "based upon" misappropriation of a trade secret beyond that provided by
the UTSA.
........................................
based upon misappropriation of a trade secret beyond that provided by the UTSA. In interpreting NRS
600A.090, a federal district court has held that a plaintiff's claims for unjust enrichment and unfair competition
were precluded by the UTSA since these two claims were duplicative of plaintiff's claim for misappropriation of
trade secrets. See Hutchison v. KFC Corp., 809 F. Supp. 68, 70 (D. Nev. 1992).
[Headnotes 2-5]
In light of the plain language of NRS 600A.090 and the holding in Hutchison,
3
we conclude that the district
court erred in relying on numerous tort and restitutionary causes of action that were explicitly excluded by
statute, as they all related to a misappropriation of a trade secret. Specifically, the district court erred in awarding
damages based on the following causes of action: (1) misappropriation of confidential information, (2) breach of
fiduciary duty, (3) intentional interference with contractual relations, (4) intentional interference with
prospective advantage, (5) the tort of breach of the covenant of good faith and fair dealing,
4
(6) civil
conspiracy, and (7) unjust enrichment. These causes of action would normally be precluded by NRS 600A.090
because they arose from a single factual episode, namely misappropriation of bidding and pricing information.
[Headnote 6]
Although we conclude that the district court erred in grounding liability in common law claims that were
displaced by statute, we further conclude that this error was harmless.
__________

3
We note that our approval of Hutchison is not without limitation. Indeed, we do not agree that the UTSA
provides a blanket preemption to all claims that arise from a factual circumstance possibly involving a trade
secret. There may be future instances where a plaintiff will be able to assert tort claims, including intentional
interference with prospective advantage and intentional interference with existing contract, that do not depend on
the information at issue being deemed a trade secret, and thus are not precluded by the UTSA. See Powell
Products, Inc. v. Marks, 948 F. Supp. 1469, 1474 (D. Colo. 1996). The factual circumstances underlying the
claims in this matter, however, are completely dependent on the facts concerning misappropriation of trade
secrets, and are therefore barred by the UTSA.

4
We note that JBM's cause of action for breach of the implied covenant of good faith and fair dealing would
not be barred provided it was grounded in contract. An implied covenant of good faith and fair dealing exists in
every Nevada contract and essentially forbids arbitrary, unfair acts by one party that disadvantage the other. See
Consolidated Generator v. Cummins Engine, 114 Nev. 1304, 1311, 971 P.2d 1251, 1256 (1998); Overhead
Door Co. v. Overhead Door Corp., 103 Nev. 126, 128, 734 P.2d 1233, 1235 (1987).
NRS 600A.090(2)(a) explicitly provides that contractual remedies, even those based upon misappropriation of
trade secrets, are not displaced by the UTSA. Accordingly, we conclude that the district court did not err in
awarding damages based on the contractual remedy of breach of the covenant of good faith and fair dealing.
........................................
further conclude that this error was harmless. See NRCP 61. We determine that this error was harmless in light
of the fact that NRS 600A.090 merely codifies the common law elements of misappropriation of confidential
information of which JBM pleaded and proffered sufficient circumstantial evidence at trial.
[Headnotes 7-9]
The elements of a misappropriation of trade secrets claim include: (1) a valuable trade secret;
5
(2)
misappropriation
6
of the trade secret through use, disclosure, or nondisclosure of use of the trade secret; and (3)
the requirement that the misappropriation be wrongful because it was made in breach of an express or implied
contract or by a party with a duty not to disclose. See Peter R.J. Thompson, An Outline of 23 California
Common Law Business Torts, 13 Pac. L.J. 1, 19-20 (1981); see also NRS 600A.030(2) (defining
misappropriation). The determination of whether corporate information, such as customer and pricing
information, is a trade secret is a question for the finder of fact. See Woodward Insur., Inc. v. White, 437
N.E.2d 59, 67 {Ind. 19S2).
__________

5
NRS 600A.030(5) defines a trade secret as:
information, including, without limitation, a formula, pattern, compilation, program, device, method,
technique, product, system, process, design, prototype, procedure, computer programming instruction or
code that:
(a) Derives independent economic value, actual or potential, from not being generally known to,
and not being readily ascertainable by proper means by the public or any other persons who can obtain
commercial or economic value from its disclosure or use; and
(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

6
Misappropriation is further defined by statute. NRS 600A.030(2) provides that:
Misappropriation means:
(a) Acquisition of the trade secret of another by a person by improper means;
(b) Acquisition of a trade secret of another by a person who knows or has reason to know that the
trade secret was acquired by improper means; or
(c) Disclosure or use of a trade secret of another without express or implied consent by a person
who:
(1) Used improper means to acquire knowledge of the trade secret;
(2) At the time of disclosure or use, knew or had reason to know that his knowledge of the
trade secret was:
(I) Derived from or through a person who had used improper means to acquire it;
(II) Acquired, under circumstances giving rise to a duty to maintain its secrecy or
limit its use; or
(III) Derived from or through a person who owed a duty to the person seeking relief
to maintain its secrecy or limit its use; or
(3) Before a material change of his position, knew or had reason to know that it was a trade
secret and that knowledge of it had been acquired by accident or mistake.
........................................
Insur., Inc. v. White, 437 N.E.2d 59, 67 (Ind. 1982). Factors to be considered include:
(1) the extent to which the information is known outside of the business and the ease or difficulty with
which the acquired information could be properly acquired by others; (2) whether the information was
confidential or secret; (3) the extent and manner in which the employer guarded the secrecy of the
information; and (4) the former employee's knowledge of customer's buying habits and other customer
data and whether this information is known by the employer's competitors . . . .
Id. (citations omitted); see also K.H. Larsen, Annotation, Former Employee's Duty, in Absence of Express
Contract, Not to Solicit Former Employer's Customers or Otherwise Use This Knowledge of Customer Lists
Acquired in Earlier Employment, 28 A.L.R. 3d 7 (1969) (setting forth a comprehensive list of factors for
consideration of whether customer information constitutes a trade secret).
[Headnotes 10, 11]
We emphasize that not every customer and pricing list will be protected as a trade secret. In Neal v.
Griepentrog, 108 Nev. 660, 666, 837 P.2d 432, 435 (1992), this court held that discount lists given by hospitals
to various medical providers were not trade secrets, and should therefore be disclosed to the public. The instant
customer and pricing information, however, is unlike that in Neal because there was testimony below that it was
extremely confidential, its secrecy was guarded, and it was not readily available to others because the plastic
gaming card industry is highly specialized.
II. Causation
[Headnote 12]
Appellants contend, however, that there was insufficient evidence to support a finding that appellants
misappropriated trade secrets because there was no direct evidence that appellants caused JBM's damages
since not one lost customer testified that it ceased doing business with JBM because of appellants' conduct. We
disagree that such direct evidence is necessary and conclude that there was sufficient circumstantial evidence
that appellants misappropriated trade secrets.
7
__________
7
In so concluding, we recognize that there is legal support holding to the contrary that requires direct
evidence of causation, such as testimony of clients lost, to establish causation in employee disloyalty cases. See
McCallister Co. v. Kastella, 825 P.2d 980, 984 (Ariz. Ct. App. 1992);
........................................
[Headnotes 13, 14]
Causation is a question for the finder of fact that will not be overturned unless clearly erroneous. See
Hermann Trust v. Varco-Pruden Buildings, 106 Nev. 564, 566, 796 P.2d 590, 591-92 (1990); see also Frances
v. Plaza Pacific Equities, 109 Nev. 91, 94, 847 P.2d 722, 724 (1993). Causation may be inferred from the
circumstantial evidence presented at trial. See Erik Electric Co. v. Elliot, 375 So. 2d 1136, 1138 (Fla. Dist. Ct.
App. 1979); Prentice Medical Corp. v. Todd, 495 N.E.2d 1044, 1049-50 (Ill. App. Ct. 1986).
In the instant matter, there was adequate circumstantial evidence to support the district court's finding that
appellants diverted JBM's trade secrets, thereby causing JBM economic loss.
[Headnote 15]
First, there is sufficient circumstantial evidence that Frantz misappropriated JBM's trade secrets. The
following evidence supports this conclusion: (1) Larsen's testimony that there were pricing lists missing after
Frantz left, and that thereafter JBM lost 40% of its card sales; (2) Frantz's testimony that she sent out numerous
faxes and letters to JBM's customers stating that she could offer more competitive pricing and that she worked
for the direct manufacturer; (3) Frantz's phone records indicating that post-TRO Frantz made 195 calls to
Western and 48 calls to Promotional Graphics, including several calls to Western's fax number; and (4) Kehn's
testimony that Frantz contacted her post-TRO and told her that if Kehn needed anything she could contact
Wes.
[Headnotes 16, 17]
Second, there is sufficient circumstantial evidence to support a finding that Accornero and Plastic
8
misappropriated JBM's trade secrets. This evidence includes: (1) Malan's testimony that Accornero told him that
he intended to compete against JBM and put it out of business by taking all of its customers;
__________
Bancroft-Whitney Co. v. Glen, 411 P.2d 921 (Cal. 1966). However, we explicitly disapprove of such a
requirement based on our belief that an existing business is entitled to compensation in instances where indirect
circumstantial evidence shows that its competitors harmed it through unfair and illegal business tactics.

8
Appellants also contend that compensatory and punitive damages should not have been assessed against the
corporations, Plastic and Western, absent evidence of corporate misconduct. We disagree. We have previously
held that a corporation is liable for damages committed by an agent employed in a managerial capacity acting
within the scope of employment as a matter of law. See Smith's Food & Drug Cntrs. v. Bellegarde, 114 Nev.
602, 610, 958 P.2d 1208, 1215 (1998). Because Accornero and Ru are officers and managers of Plastic and
Western, respectively, Accornero's and Ru's tortious acts committed within the scope of their employment are
attributable to these corporations as a matter of law.
........................................
put it out of business by taking all of its customers; and (2) the testimony of another former employee of
Accornero, who stated that Accornero had hired him from a competitor and asked him to use his knowledge of
his former employer's pricing structure and customer base to sell for Plastic.
[Headnote 18]
Third, there was sufficient circumstantial evidence that Ru and Western were involved in misappropriating
JBM's trade secrets, including: (1) Kehn's testimony that Frantz told her that she was unable to take orders but
that Kehn could call Wes and he would take care of anything thathe would help me in anyway that he could;
(2) Ru's signing of a Western Graphics check payable to Frantz for reimbursement for supplies at a trade show, a
show at which Charles testified Frantz solicited JBM's customers; and (3) Frantz's numerous post-TRO phone
calls and faxes to Western's office.
Accordingly, we conclude that there was sufficient circumstantial evidence in the record to support the
district court's finding that appellants misappropriated trade secrets, thereby causing JBM damage. We therefore
affirm the district court's conclusion that appellants were liable for JBM's damages.
III. Compensatory damages
Appellants next argue that the district court misapplied McGhie's calculation of damages. We agree.
The district court has wide discretion in calculating an award of damages, and this award will not be
disturbed on appeal absent an abuse of discretion. Diamond Enters., Inc. v. Lau, 113 Nev. 1376, 1379, 951
P.2d 73, 74 (1997) (citation omitted).
With respect to proof of damages, we have held that a party seeking damages has the burden of providing
the court with an evidentiary basis upon which it may properly determine the amount of damages. See Mort
Wallin v. Commercial Cabinet, 105 Nev. 855, 857, 784 P.2d 954, 955 (1989). Further, we have noted that
damages need not be proven with mathematical exactitude, and that the mere fact that some uncertainty exists as
to the actual amount of damages sustained will not preclude recovery. See Mort Wallin, 105 Nev. at 857, 784
P.2d at 955. Finally, this court has held that to meet this burden of proof, a party seeking damages may utilize an
expert economist to assist in the calculation of the total damages sustained, provided this expert testimony is not
speculative but is instead based on facts known to the expert at the time. See Freeman v. Davidson, 105 Nev. 13,
16, 768 P.2d 885, 887 (1989); see also Gramanz v. T-Shirts and Souvenirs, Inc., 111 Nev. 47S, 4S5, S94
P.2d 342, 347 {1995)
........................................
Inc., 111 Nev. 478, 485, 894 P.2d 342, 347 (1995) (holding that it is an abuse of discretion for an expert to give
an opinion on facts beyond his knowledge).
In the instant matter, appellants proffered testimony from McGhie, an expert witness on damages, whose
calculations were sufficiently grounded in facts known to him at the time. Specifically, McGhie calculated the
amount of lost profits for a five-year period, from 1990-95, by applying the percentage of profit that JBM had
made from past sales to a reasonable approximation of future sales.
[Headnote 19]
The district court relied on McGhie's testimony but explicitly limited liability for JBM's losses to an
eighteen-month period beginning when Frantz left JBM in October 1990, and ending in April 1992. In cases
where a district court properly limits liability to a specified period of time, it is an abuse of discretion to consider
losses outside this time period in calculating damages.
[Headnote 20]
Here, in arriving at total damages, it appears that the district court calculated total damages by applying a pro
rata share equivalent to eighteen months of loss for each casino account, regardless of whether the loss occurred
within the requisite time period. Eight of the thirteen casino accounts utilized by McGhie in his calculations,
however, sustained losses outside the time period of liability found by the district court. These accounts
included: Showboat, 1993; Circus Circus, 1993; Excalibur, 1993; Slots of Fun, 1993; Luxor, 1993; Colorado
Belle, 1993; Edgewater, 1993; and Silver Legacy, 1995 (collectively hereinafter the post-1992 losses). We
conclude that the district court abused its discretion by including a pro rata share of the post-1992 losses in its
calculation because such damages were sustained outside the time period for which appellants were found liable.
We therefore vacate the district court's award of damages and remand this matter for an evidentiary hearing for
recalculation of damages that actually occurred solely within the eighteen-month time period from October 1990
to April 1992.
IV. Punitive damages
[Headnote 21]
Appellants next contend that the district court erred in awarding punitive damages against Ru, Western, and
Plastic because there was no evidence of oppression, fraud, or express or implied malice. Although we conclude
that there was substantial evidence in the record to support the district court's finding that appellants acted
maliciously,
........................................
acted maliciously,
9
we reverse the district court's grant of punitive damages so that it may consider NRS
600A.050(2).
NRS 600A.050(2) provides that:
If willful, wanton or reckless misappropriation or disregard of the rights of the owner of the trade secret
exists, the court may award exemplary damages in an amount not exceeding twice the award made
under subsection 1.
Pursuant to the plain language of NRS 600A.050(2), a punitive damages award under the UTSA is limited to
two times the compensatory damages award. Because we have vacated the district court's award of
compensatory damages for recalculation, we necessarily vacate the punitive damages award so that the district
court can ensure that the parameters of NRS 600A.050(2) are satisfied.
V. Attorney fees
Appellants next contend that the district court erred in awarding attorney fees without a statutory basis for
doing so. We disagree.
[Headnotes 22, 23]
A district court's award of attorney fees will not be disturbed on appeal absent a manifest abuse of
discretion. See Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 26, 866 P.2d 1138, 1139-40 (1994). It is an
abuse of discretion to award attorney fees without a statutory basis for doing so. See Rowland v. Lepire, 99 Nev.
308, 315, 662 P.2d 1332, 1336 (1983).
In the case at bar, the district court awarded JBM $160,000.00 in attorney fees pursuant to NRS
18.010(2)(b), or alternatively, under NRS 600A.060. We conclude that the district court abused its discretion in
relying on NRS 18.010(2)(b) as a statutory basis for its award. We further conclude, however, that this error was
harmless because the district court's grant of attorney fees was proper under NRS 600A.060.
__________

9
The following evidence supported the district court's finding of malice: (1) testimony that Frantz took JBM's
confidential customer and pricing information; (2) testimony that Frantz sent faxes to all of JBM's customers
announcing that JBM did not manufacture its own cards and that she could offer competitive pricing; (3)
testimony that Frantz did not comply with the TRO; (4) testimony that Accornero planned on taking all of JBM's
customers in violation of his oral promise not to compete with JBM; and (5) testimony that Frantz contacted
Kehn in violation of the TRO and referred her to Ru. See NRS 42.005; see also Paullin v. Sutton, 102 Nev.
421, 423, 724 P.2d 749, 750 (1986) (in reviewing the factual evidence supporting a punitive damages award,
this court will presume all evidence favorable to the prevailing party and draw all reasonable inferences in the
prevailing party's favor).
........................................
A. NRS 18.010(2)(b)
[Headnote 24]
The plain language of NRS 18.010(2)(b) and our case law interpreting it do not permit an award of attorney
fees for acting maliciously or engaging in unacceptable discovery tactics.
10
See Chowdhry v. NLVH, Inc., 109
Nev. 478, 851 P.2d 459 (1993); Semenza v. Caughlin Crafted Homes, 111 Nev. 1089, 901 P.2d 684 (1995).
Rather, NRS 18.010(2)(b) allows an award of attorney fees to the prevailing party when a party has alleged a
groundless claim that is not supported by any credible evidence at trial. See Allianz Ins. Co. v. Gagnon, 109
Nev. 990, 996, 860 P.2d 720, 724 (1993).
[Headnote 25]
Our review of the record reveals no evidentiary basis to support the district court's explicit finding that
appellants asserted frivolous counterclaims. A counterclaim cannot be frivolous as a matter of law when the
party asserting the counterclaim actually prevails on the counterclaim. Here, both Frantz and Plastic prevailed on
their counterclaims, and the district court reduced JBM's judgment to satisfy Frantz's counterclaim for lost wages
and Plastic's counterclaim for payment of a California judgment against JBM.
Accordingly, because appellants did not assert a groundless counterclaim, the district court abused its
discretion in awarding attorney fees pursuant to NRS 18.010(2)(b).
[Headnote 26]
This error was harmless, however, because there was a proper statutory basis for the district court's award of
attorney feesNRS 600A.060(3). NRS 600A.060(3) provides that where [w]illful and malicious
misappropriation exists, the court may award reasonable attorney's fees to the prevailing party. Here, the district
court found that malicious misappropriation existed. Therefore, attorney fees were proper pursuant to NRS
600A.060(3).
CONCLUSION
We conclude that the district court erred in calculating damages. We therefore vacate the district court's
award of compensatory and punitive damages and remand this matter for an evidentiary
hearing for the purpose of recalculating damages.
__________

10
In addition to the cases where an allowance is authorized by specific statute, the court may make an
allowance of attorney's fees to a prevailing party:
. . . .
(b) Without regard to the recovery sought, when the court finds that the claim . . . was brought
without reasonable ground or to harass the prevailing party.
(Emphasis added.)
........................................
satory and punitive damages and remand this matter for an evidentiary hearing for the purpose of recalculating
damages. All other portions of the judgment entered below are affirmed.
____________
116 Nev. 473, 473 (2000) Cone v. Nevada Service Employees Union
ANNICE CONE, SHARON MALLORY, and KARL SCHLEPP, Appellants, v. NEVADA SERVICE
EMPLOYEES UNION/SEIU LOCAL 1107, THE UNIVERSITY MEDICAL CENTER OF
SOUTHERN NEVADA, and the STATE OF NEVADA, LOCAL GOVERNMENT
EMPLOYEE-MANAGEMENT RELATIONS BOARD, Respondents.
No. 29718
May 4, 2000 998 P.2d 1178
Appeal from a district court order denying, in part, a petition for judicial review of an Employment
Management Relations Board Decision. Eighth Judicial District Court, Clark County; Nancy A. Becker, Judge.
Nonunion members of a bargaining unit petitioned for judicial review of a decision of the Employment
Management Relations Board upholding a union policy. The district court denied the petition in part and granted
it in part, and the nonunion members appealed. The supreme court, resolving an issue it had not previously
considered, held that the challenged policy, imposing fees on nonunion members for representation in grievance
matters, was valid under state labor relations statutes.
Affirmed.
Frank J. Cremen, Las Vegas, for Appellants.
Frankie Sue Del Papa, Attorney General, Jan Cohen, Senior Deputy Attorney General, and Matthew T.
Dushoff, Deputy Attorney General, Carson City; Stewart L. Bell, District Attorney, and Mitchell M. Cohen,
Deputy District Attorney, Clark County; Dennis A. Kist & Associates, Las Vegas; Van Bourg, Weinberg, Roger
& Rosenfeld and James G. Varga, Los Angeles, California; and National Right to Work Legal Defense
Foundation and Glenn M. Taubman, Springfield, Illinois, for Respondents.
1. Labor Relations.
Statute defining a bargaining agent as an exclusive representative did not prohibit a union from charging nonunion members of
the bargaining unit costs for the union's grievance representation services, despite claim that statutory designation as the exclusive
representative required union to provide all services for free. Implicit in the plain language of another statute,
........................................
guage of another statute, authorizing a nonunion member to act on his own behalf with respect to any condition of his employment, is
the requisite that a nonunion member pay for pursuing his or her own grievance, even if such payment is made to the union. NRS
288.027, 288.140(2).
2. Labor Relations.
Limitations period for the filing of a claim by nonunion members of a bargaining unit ran from the date of enactment of a
challenged policy charging nonunion members for the union's grievance representation services, rather than from the time the
collective bargaining agreement (CBA) authorized the union to enact the policy. NRS 288.110(4).
3. Labor Relations.
Policy imposing fees on nonunion members of a bargaining unit for representation in grievance matters did not violate the right to
work laws. Paying a service fee for grievance representation was not a condition of employment, but rather, an individual could opt to
hire his or her own counsel, and thereby forego giving the union any money at all without fear of losing his or her job. NRS 613.250.
4. Labor Relations.
Right to work laws were enacted for the express purpose of guaranteeing every individual the right to work for a given employer
regardless of whether the worker belongs to a union. NRS 613.250.
5. Labor Relations.
Union's imposing fees on nonunion members of the bargaining unit for representation in grievance matters was not discrimination
against or coercion of the nonunion members, so as to breach union's statutory duty of fair representation. Policy merely recognized the
mutuality of obligation that may arise under an exclusive bargaining arrangement. NRS 288.140(1), 288.270(2).
6. Labor Relations.
Exclusive bargaining relationship establishes a mutuality of obligation: a union has the obligation to represent all employees in
the bargaining unit without regard to union membership, and the employee has a corresponding obligation, if permissible under the
collective bargaining agreement (CBA) and required by the union policy, to share in defraying the costs of collective bargaining
services from which he or she directly benefits.
7. Labor Relations.
Supreme court is not bound by a National Labor Relations Board (NLRB) decision when it determines that the statutes involved
do not fall within the purview of the National Labor Relations Act. National Labor Relations Act, 7, 8, as amended, 29 U.S.C.
157, 158.
Before Rose, C. J., Maupin and Shearing, JJ.
OPINION
Per Curiam:
SUMMARY
This case presents an issue that we have not previously considered: whether it is an unfair labor practice
for a union to charge nonunion members within its bargaining unit fees for individual
representation in grievances, hearings, and arbitrations.
........................................
nonunion members within its bargaining unit fees for individual representation in grievances, hearings, and
arbitrations. Both the Employer Management Relations Board and the district court, in part, answered this
question in the negative. We agree, and therefore affirm the order of the district court.
The relevant facts in this case are not in dispute, as the parties have stipulated to them. Appellants, Annice
Cone, Sharon Mallory, and Karl Schlepp (collectively hereinafter appellants), are nonunion employees of the
University Medical Center of Southern Nevada (UMC), a local government employer pursuant to NRS
288.060. Appellants, as employees of UMC, are governed by a collective bargaining agreement (the CBA)
and are members of a bargaining unit that is represented by Nevada Service Employees Union/SEIU Local
1107 (the union).
In October 1994, approximately 100 union members, including the appellants in this case, exercised their
rights under article 8, section 4 of the CBA to revoke their union dues authorization forms, thereby becoming
nonunion members of the bargaining unit. During this same time period, in October 1994, the union
disseminated a new Executive Board Policy (the policy), which is at issue in this case. The policy served two
purposes: (1) to establish a fee schedule for all nonmembers of the union for representation in grievance
matters; and (2) to notify nonunion members that they could select outside counsel to represent them in
bargaining unit matters. The policy's fee schedule provided that grievance consultation would cost a minimum
of sixty dollars an hour, that the nonunion member was responsible for fifty percent of the billed fee for hearing
officers and arbitrators, and one hundred percent of union attorney fees of up to two hundred dollars per hour.
The policy was authorized by article 6, section 2 of the CBA, which provides that:
The Union recognizes its responsibility as bargaining agent and agrees fairly to represent all employees
in the bargaining unit. UMC recognizes the right of the Union to charge nonmembers of the Union a
reasonable service fee for representation in appeals, grievances and hearings.
It is undisputed that the policy was never actually enforced against any UMC nonunion employee, including
appellants. However, because appellants believed that article 6, section 2 of the CBA and the policy violated the
Local Government Employee-Management Relations Act (the act), appellants filed a complaint with the
Local Government Employee-Management Relations Board {the "board").
........................................
Relations Board (the board). In their complaint, filed on March 7, 1995, appellants alleged that the policy
violated the act because it interfered with, restrained, coerced and discriminated against the [appellants] (and all
other employee[s] in the bargaining unit) in the exercise of their right, if they choose, to be nonmembers of the
UNION, all in violation of NRS 288.140, 288.270(1)(a), 288.270(1)(c), 288.270(2)(a).
In response to appellants' initial complaint, UMC, the board, and the union filed answers. Thereafter, the
parties filed legal briefs, stipulated to the facts, and agreed to let the board decide the issues in this case without
a hearing.
On January 10, 1996, the board issued a divided 2-1 decision. A majority of the board upheld the policy,
concluding that it was not contrary to the provisions of NRS Chapter 288 or Nevada's Right to Work Law (NRS
613.230-.300) and that, in the alternative, appellants had waived by inaction their right to object to such
provisions. Further, the board concluded that the policy was neither coercive nor discriminatory in nature and
did not derogate the union's statutory duty as an exclusive bargaining agent to represent all UMC employees
fairly and impartially.
In contrast, the dissenter to the board's decision concluded that the policy was invalid as a prohibited practice
under NRS 288.270(2)(a) because it served to coerce nonunion employees into joining the union. Further, the
dissent concluded that the policy was a prohibited practice because the union, as the exclusive bargaining agent
for UMC employees, had a duty to represent all union and nonunion employees on a nondiscriminatory basis.
Because appellants felt that the board erred in reaching this conclusion, appellants filed a petition for judicial
review (the petition). The district court denied in part and granted in part
1
the petition, ruling that it was not
arbitrary or capricious for the board to conclude that the policy was not discriminatory against nonunion
employees or otherwise unlawful as interpreted.
Believing that the district court erred in making the aforementioned ruling, appellants filed this timely
appeal.
DISCUSSION
This court has held that it will conduct an independent review of an administrative agency's construction of
a statute where the facts are not in dispute. See American Int'l Vacations v. MacBride, 99 Nev. 324, 326, 661
P.2d 1301, 1302 (1983).
__________

1
Although the district court upheld the policy as interpreted, it remanded this matter to the board with
instructions that the board require the union to rewrite the policy to clarify that the policy only applied to
individual grievances, not generalized grievances that affect all employees.
........................................
Because the facts are not in dispute in this matter, and indeed have been stipulated to, this court's review is de
novo.
[Headnotes 1, 2]
The board, and later the district court, concluded that NRS 288.027 did not prohibit the union from charging
a nonmember costs for the union's grievance representation services. Appellants first contend that this
conclusion is erroneous because the union, as the bargaining agent of UMC employees, is obligated by the
plain language of NRS 288.027 to exclusively represent all UMC employees, including nonunion members, in
all grievance matters without charging a fee.
2
We disagree.
A. NRS 288.027
NRS 288.027 defines a bargaining agent as an exclusive representative:
an employee organization recognized by the local government employer as the exclusive representative
of all local government employees in the bargaining unit for purposes of collective bargaining.
Because of the inclusion of the word exclusive, appellants conclude that the union is not allowed to pick
and choose which of the representational activities that it will provide free of charge because its statutory
designation as the exclusive representative requires it to provide all services for free. We do not agree that the
mere inclusion of the word exclusive in and of itself prohibits a union from charging nonunion members
service fees for individual grievance representation.
3
See National Treasury Employees Union v.
Federal Labor Relations Auth., S00 F.2d 1165, 1167 {D.C. Cir. 19S6)
__________

2
Appellants also contend that the board erred in concluding that the statute of limitations barred
appellants' claim because the CBA provision authorizing the union to enact the policy had been in effect for six
years. We agree. Appellants did not waive their right to contest the validity of the policy because they filed their
claim within six months of the policy's enactment. See NRS 288.110(4) (setting forth six-month statute of
limitations); Fraternal Order of Police Haas Mem'l Lodge #7 v. Pennsylvania Labor Relations Bd., 696 A.2d
873, 876 (Pa. Commw. Ct. 1997) (holding that the limitations period for the filing of an unfair labor practices
charge is triggered when the complainant has reason to believe that an unfair labor practice has actually
occurred); Las Vegas Police Protective Ass'n Metro, Inc. v. City of Las Vegas, EMRB Item No. 264, Case No.
A1-04445474, at 5 (July 15, 1991) (courts construe the waiver doctrine strictly).
Because we agree with appellants that they did not waive their right to object to the policy, we
reach the substantive merits of their appeal.

3
We recognize that there is authority supporting appellants' position. See International Assoc. of Machinists
and Aerospace Workers, Local Union 697, 223 N.L.R.B. 832, 834 (1976) (describing the role of a union
designated by statute as an exclusive bargaining agent). However, we disagree with the National Labor
Relations Board's (NLRB) conclusion that an exclusive
........................................
Treasury Employees Union v. Federal Labor Relations Auth., 800 F.2d 1165, 1167 (D.C. Cir. 1986) (noting that
there was nothing particularly plain or compelling about the text [of a similar federal statute], standing alone).
Further, with regard to statutory language, there is another Nevada statute, NRS 288.140(2), that explicitly
authorizes a nonunion member to act on his own behalf with respect to any condition of his employment. This
statute provides an individual with a right to forego union representation. Implicit in the plain language of this
provision is the requisite that a nonunion member pay for pursuing his or her own grievance, even if such
payment is made to the union.
Accordingly, we conclude that there is nothing in the plain language of NRS 288.027 that would prohibit the
union from charging nonmembers fees for individual representation.
B. Right to work laws
[Headnotes 3, 4]
Appellants next contend that the policy violates Nevada's right to work laws. Nevada's right to work laws,
particularly NRS 613.250, were enacted for the express purpose of guaranteeing every individual the right to
work for a given employer regardless of whether the worker belongs to a union. See Independent Guard Ass'n v.
Wackenhut Servs., 90 Nev. 198, 202-03, 522 P.2d 1010, 1013 (1974). In Wackenhut, this court invalidated an
agency shop agreement, an agreement to pay fees to a labor organization in lieu of membership dues, because it
violated NRS 613.250 since it was equivalent to conditioning employment on union membership. 90 Nev. at
203, 522 P.2d at 1014.
The instant policy is unlike the agency shop agreement in Wackenhut, because paying a service fee for
grievance representation is not a condition of employment. Indeed, an individual may opt to hire his or her own
counsel, and thereby forego giving the union any money at all without fear of losing his or her job.
Accordingly, we conclude that the policy does not violate Nevada's right to work laws.
C. NRS 288.140(1) and NRS 288.270(2)
[Headnote 5]
Appellants' final argument is that the union discriminated against its nonunion members, and thereby
breached its duty of fair representation set forth in NRS 288.140(1) and NRS 2SS.270{2)
__________
bargaining agent cannot charge nonmembers fees for individual grievance representation.
........................................
288.270(2) by charging nonunion members a service fee for individual grievance representation.
4
We disagree.
NRS 288.140(1)
5
sets forth the union's duty of fair representation and explicitly states that a local
government employer shall not discriminate based on membership or nonmembership in an employee
organization. Further, NRS 288.270(2) describes the prohibited practices of an employee organization, including
that it may not:
(a) Interfere with, restrain or coerce any employee in the exercise of any right guaranteed under this
chapter.
. . . .
(c) Discriminate because of . . . political or personal reasons or affiliations.
We see no discrimination or coercion, however, in requiring nonunion members to pay reasonable costs
associated with individual grievance representation, and therefore conclude that the union did not violate the
aforementioned statutes.
There is persuasive authority and a compelling rationale in support of our conclusion. First, several other
jurisdictions have held that requiring nonunion members to pay costs for union representation was not
discriminatory, coercive or restraining. See Schaffer v. Board of Education, 869 S.W.2d 163, 166-68 (Mo. Ct.
App. 1993); Opinion of the Justices, 401 A.2d 135, 147 (Me. 1979).
[Headnote 6]
Second, like the Supreme Judicial Court of Maine, we are convinced that the exclusive bargaining
relationship establishes a mutuality of obligation: a union has the obligation to represent all employees in the
bargaining unit without regard to union membership, and the employee has a corresponding obligation, if
permissible under the CBA and required by the union policy, to share in defraying the costs of collective
bargaining services from which
he or she directly benefits. See Opinion of the Justices, 401 A.2d at 147.
__________

4
Appellants assert several other arguments, including but not limited to their contention that the
decision to assess a fee for grievance representation should be made by the legislature and that the policy
unfairly concentrates the cost of grievance adjustment on nonmembers. We have considered appellants'
arguments and conclude that they lack merit.

5
NRS 288.140(1) provides that:
It is the right of every local government employee, subject to the limitation provided in subsection
3, to join any employee organization of his choice or to refrain from joining any employee organization.
A local government employer shall not discriminate in any way among its employees on account of
membership or nonmembership in an employee organization.
........................................
at 147. Our recognition of this mutuality of obligation will, in part, serve to discourage free ridersemployees
who receive the benefits of union representation but are unwilling to contribute to its financial support. See
Schaffer, 869 S.W.2d at 166 (citing NLRB v. General Motors Corp., 373 U.S. 734, 743 (1963)).
[Headnote 7]
Although appellants cite much precedent,
6
including NLRB opinions, in support of their position, we reject
this authority. Preliminarily, we note that this court is not bound by an NLRB decision when it determines that
the statutes involved do not fall within the purview of the National Labor Relations Act. See Associated Gen.
Contractors v. Otter Tail Power Co., 457 F. Supp. 1207, 1216 (D. N.D. 1978) (activities not listed in sections
seven and eight of the National Labor Relations Act are within the jurisdiction of the state courts). Further, we
disagree with this authority because it leads to an inequitable result that we cannot condone, by essentially
requiring union members to shoulder the burden of costs associated with nonunion members' individual
grievance representation.
Accordingly, we conclude that the union did not discriminate against nonmembers in enacting the policy, and
that the policy merely recognized the mutuality of obligation that may arise under an exclusive bargaining
arrangement.
CONCLUSION
Accordingly, we hold that the policy is not violative of NRS 288.027, Nevada's right to work laws, NRS
288.140(1), or NRS 288.270(2). We therefore affirm the order of the district court.
__________

6
Appellants' citation of authority includes: National Treasury Employees Union v. Federal
Labor Relations Auth., 721 F.2d 1402 (D.C. Cir. 1983); Del Casal v. Eastern Airlines, Inc., 634 F.2d 295 (5th
Cir. 1981); Furniture Workers Div., Local 282, 291 N.L.R.B. 182 (1988); Columbus Area Local, American
Postal Workers Union, 277 N.L.R.B. 541 (1985); International Association of Machinists and Aerospace
Workers, Local Union No. 697, 223 N.L.R.B. 832 (1976).
____________
........................................
116 Nev. 481, 481 (2000) Furbay v. State
HAROLD ROSS FURBAY, aka DAVID LEE HAMMOND, Appellant, v. THE STATE OF NEVADA,
Respondent.
No. 31857
May 4, 2000 998 P.2d 553
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of first degree murder and one
count of robbery. The district court sentenced appellant to life without the possibility of parole for murder and to
a consecutive term of fifteen years for robbery. Eighth Judicial District Court, Clark County; Jeffrey D. Sobel,
Judge.
Defendant was convicted in the district court of first degree murder and robbery, and was sentenced to life
without possibility of parole for murder and consecutive term of fifteen years for robbery. Defendant appealed.
The supreme court held that: (1) delay of five and one-half years between defendant's arrest and trial did not
implicate his constitutional right to speedy trial, (2) defendant waived appellate review of claim that he was
denied his constitutional right to self-representation, (3) evidence was sufficient to support convictions, and (4)
prosecutor's office was not required to provide defendant with inculpatory evidence prior to penalty hearing.
Affirmed.
Philip J. Kohn, Special Public Defender, and Lee Elizabeth McMahon and Mark B. Bailus, Deputy Special
Public Defenders, Clark County, for Appellant.
Chief Deputy District Attorney, and Brian Rutledge, Deputy District Attorney, Clark County, for Respondent.
1. Attorney and Client; Criminal Law.
Defendant can waive his statutory right to a trial within 60 days after arraignment, and such a waiver can be expressed by counsel.
NRS 178.556(2).
2. Criminal Law.
There is no fixed time that indicates when a defendant's fundamental constitutional right to a speedy trial has been violated; thus,
the right is assessed in relation to the circumstances of each case. U.S. Const. amend. 6.
3. Criminal Law.
Prosecution must discharge its constitutional duty to make a diligent, good-faith effort to bring a defendant to trial. U.S. Const.
amend. 6.
4. Criminal Law.
When determining whether a defendant's fundamental constitutional right to a speedy trial was violated, four factors should be
considered:
........................................
(1) length of delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) prejudice to the defendant. U.S. Const.
amend. 6.
5. Criminal Law.
Delay of five and one-half years between murder defendant's arrest and his trial did not implicate his constitutional right to speedy
trial, absent any evidence that defendant was prejudiced by delay. Five of the nine continuances responsible for entire delay were
requested by defense, two other dates were continued for plea negotiations which ultimately failed, one date was continued for good
cause because state could not locate a witness, and only continuance not requested by defense or supported by good cause, that granted
to permit prosecutor to attend a seminar, accounted for only two months' delay. U.S. Const. amend. 6.
6. Criminal Law.
Defendant has a constitutional right to personally make his defense.
7. Criminal Law.
To determine whether a defendant can represent himself, courts conduct a two-part inquiry: first, the defendant must be competent
to waive his right to assistance of counsel; second, when an accused relinquishes his right to counsel, he must do so knowingly and
intelligently.
8. Criminal Law.
Murder defendant waived appellate review of claim that he was denied his constitutional right to self-representation by rejecting
offered opportunity to revisit trial court's denial of his motion for self-representation, and by expressly waiving his right to
self-representation at that time.
9. Criminal Law.
Jury conviction will stand where the record reveals substantial evidence that reasonably supports a finding of guilt beyond a
reasonable doubt.
10. Criminal Law.
Upon appellate review of sufficiency of the evidence to support a conviction, all of the evidence is to be considered in the light
most favorable to the prosecution.
11. Criminal Law.
It is the jury's function, not that of the appellate court, to assess the weight of the evidence and determine the credibility of
witnesses.
12. Robbery.
Evidence was sufficient to support defendant's conviction for robbery, despite fact that none of the property stolen was presented
at trial. Taking of victim's property was accomplished by means of victim's murder, testimony at trial indicated that defendant was in
possession of victim's pickup truck, television, and other items, including jewelry, after murder, and pawned or had others pawn
various possessions of defendant, and defendant was still in possession of victim's truck at time of his arrest. NRS 200.380(1).
13. Homicide.
Evidence was sufficient to support defendant's conviction for first degree murder, based on his commission of murder in
perpetration of a robbery. Defendant worked for victim and was one of the last persons seen with victim, witness testified that he saw
defendant with individual matching victim's description shortly before commission of the crime, and defendant was in possession of
victim's property after murder. NRS 200.380(1)(b).
........................................
14. Criminal Law.
Prosecutor is under no general duty to provide inculpatory, as opposed to exculpatory, evidence to the defense.
15. Criminal Law.
Prosecutor's office was not required to provide murder defendant with inculpatory evidence in its possession prior to penalty
hearing, where prosecutor's office did not have open file policy and had not promised defendant to provide him with inculpatory
evidence.
OPINION
Per Curiam:
On appeal from a judgment of conviction of first degree murder and robbery, Harold Furbay argues that
(1) his right to a speedy trial was violated, (2) his motion for self-representation was improperly denied, (3)
there was insufficient evidence to convict him of murder and robbery, and (4) he was denied a fair penalty
hearing. We reject Furbay's contentions and affirm his conviction and sentence.
In late 1991, Furbay met Max Combs at a truck stop in El Paso, Texas. Combs allowed Furbay to join
him as he journeyed to Elko, Nevada. Their trip was interrupted when a Lake Mead park ranger impounded
Combs' vehicle. Combs did not have sufficient funds to redeem his vehicle, so Furbay searched for
employment in Las Vegas.
Furbay began assisting Walter Jerry Mitchell with his pony ride business. Two weeks later, Furbay
brought a man matching Mitchell's description to Combs' hotel. They arrived in a vehicle matching the
description of Mitchell's pickup truck. Two weeks after that, Furbay arrived at Combs' hotel with the truck
but without Mitchell. Furbay indicated that Mitchell was out of town and had permitted him to use the
vehicle. Mitchell's television and other personal items were in the back of the truck. Furbay and Combs
decided to continue their journey to Elko in Mitchell's truck. In Elko, Furbay tried to pawn some items, but
was turned away for inadequate identification. Combs sold a silver and turquoise ring at a jewelry and loan
establishment. Combs later revealed to police that Furbay sold a television and VCR in Las Vegas before
leaving for Elko. After arriving in Elko, Furbay and Combs parted ways.
Mitchell's body was found in Las Vegas on January 11, 1992. Mitchell had been killed by blunt trauma to
the head and strangulation. In the aftermath of Mitchell's death, Mitchell's wife, who did not live with him,
discovered a bill for telephone calls to Baltimore, Maryland, placed on January 9 and 10, 1992.
........................................
Baltimore, Maryland, placed on January 9 and 10, 1992. Many of Mitchell's personal items, including silver and
turquoise jewelry, a television, and a VCR, were also missing from his home.
Back in Elko, Furbay met Ricky Loftis from Moab, Utah. Furbay introduced himself as Jerry Mitchell. Loftis
recently drove to Elko, but he was out of gas and money. Furbay asked Loftis to pawn some of Mitchell's items,
but Loftis was turned away for lack of identification. Loftis later sold a silver and turquoise watch in a parking
lot, and a hitchhiker agreed to pawn other items. After Loftis sold his truck, the two agreed to travel to Moab in
Mitchell's truck. Before leaving, Furbay switched the license plates on Mitchell's truck with those on Loftis'
truck.
During the trip to Moab, Loftis became suspicious of Furbay and decided to notify the police. After both
were arrested, the police found an identification card for Jerry Mitchell in Furbay's wallet. After further
investigation, Furbay's fingerprints were found in Mitchell's home. The police also discovered that the phone
calls to Maryland were to Furbay's sister and a friend.
Following a jury trial beginning on October 20, 1997, Furbay was found guilty of first degree murder and
robbery.
Right to a speedy trial
Furbay argues that his right to a speedy trial was violated because his jury trial did not occur until five and
one-half years after his arrest in 1992.
[Headnote 1]
In Nevada, a defendant has a statutory right to a trial within 60 days after arraignment. See NRS
178.556(2). However, a defendant can waive this statutory right and such a waiver can be expressed by counsel.
See Schultz v. State, 91 Nev. 290, 292, 535 P.2d 166, 167 (1975). In this case, Furbay's counsel waived
application of the 60-day rule at Furbay's arraignment.
[Headnotes 2-4]
A defendant's fundamental constitutional right to a speedy trial was decided in Barker v. Wingo, 407 U.S.
514, 515 (1972). In Barker, the U.S. Supreme Court stated that there is no fixed time that indicates when the
right to a speedy trial has been violated; thus, the right is assessed in relation to the circumstances of each case.
See id. at 521. The prosecution, however, must discharge its constitutional duty to make a diligent, good-faith
effort to bring [the defendant to trial]. Moore v. Arizona, 414 U.S. 25, 26 (1973) (citations omitted). When
determining whether the right to a speedy trial was violated, four factors should be considered: (1) length of
delay; (2) the reason for the delay; (3) the defendant's assertion of his right;
........................................
assertion of his right; and (4) prejudice to the defendant. See Barker, 407 U.S. at 530.
[Headnote 5]
During the intervening five and one-half years between Furbay's arrest and his jury trial, his trial was
continued nine separate times. While Furbay invoked his speedy trial rights in open court, the second factor of
the Barker analysis weighs overwhelmingly in favor of the prosecution. Defense counsel requested five of the
trial continuances. Two other trial dates were continued because the parties entered into plea negotiations which
failed. Another trial date was continued for good cause because the prosecution could not locate a witness. And
another trial date was continued because the prosecutor wished to attend a seminar. Thus, all but one of the
continuances were for good cause or were occasioned by defense motions or tactics. See, e.g., Barker, 407 U.S.
at 530. We conclude that the two-month postponement for the prosecutor's seminar attendance was unacceptable
delay; however, this is the only unacceptable delay in the five-and-one-half year period, and therefore, we hold
there was no infringement of Furbay's constitutional speedy trial right. There was no evidence that the actions of
the prosecution prejudiced Furbay.
Right to self-representation
[Headnotes 6, 7]
A defendant has a constitutional right to personally make his defense. See Faretta v. California, 422 U.S.
806, 819 (1975). To determine whether a defendant can represent himself, courts conduct a two-part inquiry.
First, the defendant must be competent to waive his right to assistance of counsel. See Godinez v. Moran, 509
U.S. 389, 399 (1993). Second, when an accused relinquishes his right to counsel, he must do so knowingly and
intelligently. Faretta, 422 U.S. at 835. An accused's technical legal knowledge, as such, is not relevant to an
assessment of his knowing exercise of the right to defend himself. Id. at 836.
[Headnote 8]
By August 1994, Furbay had filed three motions to dismiss counsel as ineffectiveall of which were denied.
Furbay filed a motion to represent himself when the court refused to appoint other counsel. This motion was also
denied. The record indicates that Furbay was aware of the dangers of proceeding without counsel at trial.
However, it is unclear whether Furbay was aware that the prosecution was seeking the death penalty. Although
the prosecution filed a notice to seek the death penalty, the record does not show that Furbay understood that the
prosecution could seek the death penalty.
........................................
the death penalty. The district court's decision to deny Furbay's motion for self-representation was significantly
based on the district court's determination that Furbay was not aware that he might face the death penalty if
convicted. We need not determine whether Furbay was unconstitutionally denied the right to represent himself.
In March 1997, the district court gave Furbay an opportunity to revisit the previous decision regarding Furbay's
motion for self-representation. Furbay rejected the opportunity and waived his right to self-representation.
[Headnotes 9-11]
A jury conviction will stand where the record reveals substantial evidence that reasonably supports a
finding of guilt beyond a reasonable doubt. See Doyle v. State, 112 Nev. 879, 891, 921 P.2d 901, 910 (1996).
Upon appellate review, all of the evidence is to be considered in the light most favorable to the prosecution. See
Jackson v. Virginia, 443 U.S. 307, 318 (1979). It is the jury's function, not that of the appellate court, to assess
the weight of the evidence and determine the credibility of witnesses. See Doyle, 112 Nev. at 891-92, 921 P.2d
at 910.
[Headnote 12]
Furbay alleges that because none of Mitchell's stolen property was presented at trial there was insufficient
evidence to find him guilty. NRS 200.380(1) defines robbery as:
[T]he unlawful taking of personal property from the person of another, or in his presence, against his will,
by means of force or violence or fear of injury, immediate or future, to his person or property, or the
person or property of a member of his family, or of anyone in his company at the time of the robbery.
The act of violence in this case was the murder of Mitchell. It does not matter whether the intent to rob was
conceived before or after the act of violence. See Leonard v. State, 114 Nev. 1196, 1210, 969 P.2d 288, 296
(1998). Furbay was in possession of Mitchell's pickup truck, television, and other items, including jewelry, when
he picked up Combs in Las Vegas. Testimony at trial indicated that the television and the other items, which
Furbay tried to pawn or had others pawn, were Mitchell's. When Furbay was arrested, he was still in possession
of Mitchell's truck. When the evidence is viewed in the light most favorable to the prosecution, there is sufficient
evidence to convict Furbay of robbery.
........................................
[Headnote 13]
There was also sufficient evidence to convict Furbay of murder in the first degree.
1
Trial testimony revealed
that Furbay worked for Mitchell and was one of the last persons seen with the deceased. Combs indicated that he
saw Furbay with an individual matching Mitchell's description shortly before the commission of the crime. The
fact that Furbay was in possession of Mitchell's property is evidence that Furbay committed the murder in
perpetration of a robbery which is sufficient evidence to constitute first degree murder under NRS
200.030(1)(b). Again, when the evidence is viewed in the light most favorable to the prosecution, there is
sufficient evidence to find Furbay guilty of first degree murder.
Penalty hearing
At sentencing, the prosecution presented an Alabama police investigator who revealed information about
murder charges against Furbay in Alabama. The investigator also testified about an altercation that Furbay
had with a previous employer. Furbay now contends that he did not receive a fair trial because the prosecution
did not produce all of the investigator's reports prior to the hearing.
[Headnotes 14, 15]
The prosecutor is under no general duty to provide inculpatory, as opposed to exculpatory, evidence to the
defense. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (discussing exculpatory evidence); Rivera v. State, 808
S.W.2d 80, 95 (Tex. Crim. App. 1991) (discussing inculpatory evidence). Furbay incorrectly argues that McKee
v. State, 112 Nev. 642, 647-48, 917 P.2d 940, 943-44 (1996) supports his contention. In McKee, this court held
that the prosecution deliberately withheld inculpatory evidence in its possession and control despite professing to
have an open file policy. This court concluded that the prosecution is held to a high ethical standard and must
abide by the promises it makes. When the prosecution purports to give all inculpatory evidence in its control, it
may not withhold evidence for later use. See id. at 648, 917 P.2d at 944. The case at bar does not involve a
prosecutor's promise to provide all evidence in its possession to the defense.
__________

1
NRS 200.030(1) defines murder in the first degree as:
(a) Perpetrated by means of poison, lying in wait, torture or child abuse, or by any other kind of
willful, deliberate and premeditated killing;
(b) Committed in the perpetration or attempted perpetration of . . . robbery, burglary, . . . or
(c) Committed to avoid or prevent the lawful arrest of any person by a peace officer or to effect
the escape of any person from legal custody.
........................................
promise to provide all evidence in its possession to the defense. Furbay's rights were not violated, and he is not
entitled to a new hearing.
Therefore, we affirm Furbay's conviction and sentence.
____________
116 Nev. 488, 488 (2000) Jennings v. State
CHARLES EDWARD JENNINGS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 31863
May 4, 2000 998 P.2d 557
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of first-degree murder with
the use of a deadly weapon. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Defendant was convicted in the district court of first-degree murder with use of a deadly weapon. Defendant
appealed. The supreme court, Shearing, J., held that amendment of the information, based on defendant's
testimony at trial, to add felony-murder charge based on theory that defendant had kidnapped the victim before
killing him, violated defendant's fundamental right under Sixth Amendment and state constitution to be clearly
informed of nature and cause of charges in order to permit adequate preparation of a defense.
[Rehearing denied July 25, 2000]
Mace J. Yampolsky, Ltd., Las Vegas, for Appellant.
Chief Deputy District Attorney, and William Koot, Deputy District Attorney, Clark County, for Respondent.
Amendment of the information to set forth added alternative theories of the mental state required for first-degree murder does not
charge an additional or different offense within meaning of statute providing that the information may be amended at any time
before verdict if no additional or different offense is charged and if defendant's substantial rights are not prejudiced. NRS 173.095(1).
The Sixth Amendment and the state constitution both guarantee a criminal defendant a fundamental right to be clearly informed of
the nature and cause of the charges in order to permit adequate preparation of a defense. Const. art. 1, 8; U.S. Const. amend. 6.
........................................
3. Constitutional Law; Indictment and Information.
The Sixth Amendment guarantee to a criminal defendant, of the fundamental right to be clearly informed of the nature and cause
of the charges in order to permit adequate preparation of a defense, is applicable to the states through the Due Process Clause of the
Fourteenth Amendment. U.S. Const. amends. 6, 14.
Amendment of information in prosecution for first-degree murder with use of deadly weapon, based on defendant's testimony at
trial, to add felony-murder charge based on theory that defendant had kidnapped the victim before killing him, violated defendant's
fundamental right to be clearly informed of nature and cause of charges in order to permit adequate preparation of a defense. Defendant
had no reason to expect that State would allege his act of beckoning victim while defendant held gun in his hand, which State knew of
from pretrial statements, constituted a kidnapping, and defendant might have testified differently if he had known he would be charged
under a theory that disregarded intent to murder. Const. art. 1, 8; U.S. Const. amend. 6; NRS 173.095(1).
OPINION
Appellant Jennings was terminated from his job at the United States Postal Service in Las Vegas. On
December 16, 1996, when Jennings received the final decision affirming his termination, he started a
three-day crack cocaine binge with an acquaintance. He also removed his wife's gun from their home
sometime during those three days, allegedly because he was planning to kill himself.
Jennings later claimed that on the morning of December 19th, while still under the influence of
cocaine, he drove to the post office parking lot, beckoned to the victim, a former co-worker, and then
killed him by firing two bullets into his head. Jennings said the victim was trying to take the gun out of his
hand when it went off. Jennings drove away and turned himself in to the police a few minutes later.
Jennings gave the police a voluntary, tape-recorded statement regarding the shooting and events
leading up to it. Jennings was charged with first-degree murder with the use of a deadly weapon. The
case proceeded to trial, and Jennings testified on his own behalf. Following his testimony, the State
amended its information to add a felony-murder theory alleging Jennings kidnapped the victim before
shooting him. The jury convicted Jennings of first-degree murder with the use of a deadly weapon, and
the district court sentenced him to two consecutive life sentences without the possibility of parole.
Jennings appeals from this judgment.
........................................
Amendment of information
Jennings argues that his Sixth Amendment right to a fair trial under the United States Constitution was
violated by the State's amendment of the information after he already testified. In fact, the amendment of the
information was allegedly based on Jennings' testimony.
[Headnotes 1-3]
Amendment of a criminal information at any time before verdict is authorized by NRS 173.095(1), providing
in pertinent part:
The court may permit an indictment or information to be amended at any time before verdict or finding if
no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.
The first requirement under the statute for amendment of the criminal information at any time before verdict is
that no additional or different offense is charged. Amendment of the information to set forth added alternative
theories of the mental state required for first-degree murder does not charge an additional or different offense.
See State v. Dist. Ct., 116 Nev. 374, 378, 997 P.2d 126, 129 (2000). However, we conclude that substantial
rights of Jennings were prejudiced by the amendment of the information after he testified. The Sixth Amendment
and Article 1, Section 8 of the Nevada Constitution both guarantee a criminal defendant a fundamental right to
be clearly informed of the nature and cause of the charges in order to permit adequate preparation of a defense.
1
See Sheppard v. Rees, 909 F.2d 1234, 1236 (9th Cir. 1989) (citing Cole v. Arkansas, 333 U.S. 196 (1948)).
Jennings did not have that opportunity.
This court has held that adding the theory of felony-murder to murder, based on premeditation and
deliberation, at the close of a case, violates the Sixth Amendment and NRS 173.075(1). See Alford v. State, 111
Nev. 1409, 1415, 906 P.2d 714, 717 (1995). In Alford, this court stated:
To put a man on trial without giving him, in the information, a statement of the acts constituting the
offense in ordinary and concise language, and in such a manner as to enable a person of common
understanding to know what is intended and to let him know these facts, for the first time when his trial is
in progress, is to deprive him of the protection the statute was designed to give him and deny him due
process of law in violation of . . . the Constitution.
__________

1
The Sixth Amendment guarantee is applicable to the states through the Due Process Clause of
the Fourteenth Amendment. See In re Oliver, 333 U.S. 257, 275-76 (1948).
........................................
See id. at 1415 (quoting Simpson v. District Court, 88 Nev. 654, 659, 503 P.2d 1225, 1229 (1972)) (cites and
quotation marks omitted).
The decision in Alford is based on the lack of sufficient notice so as to enable the defendant to defend the
charge. See id. The State contends that the amendment adding the theory of felony-murder in this case is
controlled by our decision in Noonan v. State, 115 Nev. 184, 980 P.2d 637 (1999), and not by Alford. In
Noonan the State requested a jury instruction based upon felony-murder involving a violation of the felony child
endangerment statute. We concluded that the failure of the State to include felony endangerment in the
information was not a violation of Alford because the information charged murder as a result of child abuse and
set forth the specific fact that Noonan placed the victim in a cold environment, resulting in death by
hypothermia.
Thus Noonan was aware that the State sought to prove that he had placed the child in a dangerous situation.
Before trial, Noonan denied any culpability. However, on direct examination, Noonan admitted to negligently
placing the child in a dangerous situation. There was no surprise to Noonan for the State to then seek a jury
instruction on felony endangerment arising from the same set of facts as alleged in the information.
[Headnote 4]
In this case, Jennings had no notice, before he testified, of any allegations of facts that would support a
charge of felony-murder. Therefore, he had no opportunity to defend the charge. The instant case is further
distinguishable from Noonan, where the defendant's testimony yielded new information of which the State was
not previously aware, and which supported an additional charge of felony-murder. Id. at 188-89, 980 P.2d at
639. In the instant case, by contrast, the State was aware from Jennings' pretrial statements, that Jennings called
the victim over at gunpoint.
2
The State did not, however, allege this conduct as part of his criminal activity until
Jennings' defense was substantially completed. Jennings had no reason to expect that the State would allege his
act of beckoning to his victim with a gun in his hand constituted a kidnapping. See Alford, 111 Nev. at 1414, 906
P.2d at 717. Jennings' defense would likely have been quite different had he known he would be charged
on a theory that disregarded his intent to murder,
__________

2
Jennings' confession to Detective Thowsen was as follows:
I pulled up. And my gun was in my, there on the hat was on it and I, and I say, Hey, I want to
talk to you,' and I wanted to ask him where was Barco at, cause Barco always leaving. And then he said,
Whoa.' And then he Iwhen he got outta the car, he looked and then that's when I raise the gun up like
that. I say, I want to you.' And he said, Whoa,' then he, he came around to my side and stuck his head
and tried to grab the gun. I had the gun in this hand like this.
........................................
known he would be charged on a theory that disregarded his intent to murder, and his decision whether to testify
might have been different.
In view of our decision on this issue we do not need to examine appellant's remaining contentions. The
conviction is reversed and remanded to the district court for further proceedings.
____________
116 Nev. 492, 492 (2000) Matter of Estate of Thomas
In the Matter of the ESTATE OF GEORGE EVAN THOMAS.
JODI EGGLESTON, fka JODI DAVIS, JAY DAVIS, as Guardian ad Litem of RACHEL DAVIS, and
TIFFANY DAVIS, Appellants, v. DEBBIE COSTELLO, Executrix, Respondent.
No. 32041
May 4, 2000 998 P.2d 560
Appeal from an order approving first and final account, report of administration, and petition for distribution
of the estate of George Evan Thomas, deceased. Eighth Judicial District Court, Clark County; Myron E. Leavitt,
Judge.
Judgment creditors of testate decedent took appeal from order of the district court, approving final account,
report of administration, payment of executrix's and attorney fees, and petition for distribution of estate. The
supreme court held that: (1) amendment to priority statute giving expenses of administration first priority was
not entitled to retroactive application, but was evidence of what legislature originally intended; and (2)
administrative claims of executrix were entitled to priority over payment of debt incurred by deceased during his
lifetime.
Affirmed.
McKnight & Hendrix and David Mincin, Las Vegas, for Appellants.
Steven J. Szostek, Las Vegas, for Respondent.
1. Statutes.
No provision of a statute should be rendered nugatory by construction, nor should any language be made mere surplusage, if such
a result can be avoided.
........................................
2. Statutes.
Courts should avoid construing statutes so that any provision or clause is rendered meaningless.
3. Statutes.
Where a former statute is amended, or a doubtful interpretation of a former statute rendered certain by subsequent legislation, such
amendment is persuasive evidence of what the legislature intended by the first statute.
4. Statutes.
The general rule is that statutes are prospective only, unless it clearly, strongly, and imperatively appears from the act itself that the
legislature intended the statute to be retrospective in its operation.
5. Executors and Administrators.
Amendment to priority statute to list expenses of administration, including funeral expenses and expenses incurred by personal
representative, as first item to be paid by decedent's estate was not entitled to retrospective application, absent any indication of
legislative intent to that effect, but could be considered as persuasive evidence of what legislature intended by prior statute. NRS
150.220(1).
Administrative claims have higher priority than debts and charges of estate listed in former priority statute. Contrary construction
would have rendered nugatory plain language of other sections of Probate Code, using imperative language to describe entitlement of
executors, attorneys, and administrators to fees. NRS 150.220; NRS 150.010, 150.060(1) (1998).
Administrative claims of executrix were entitled to priority over payment of debt incurred by deceased during his lifetime,
notwithstanding omission of administrative expenses from priority statute at time of decedent's death. NRS 150.220.
OPINION
Per Curiam:
This is an appeal from an order approving a first and final account, report of administration, and petition
for distribution of the estate of George Evan Thomas, deceased. Appellants held a recorded judgment lien
against the decedent, which was obtained during his lifetime. The decedent died testate, and his house,
against which appellants had obtained a judgment lien, was the only significant asset of the estate. The
executrix was named in the decedent's will, and she hired legal counsel to represent the estate. The district
court approved the executrix's final account and payment of fees to the executrix and the estate's attorney.
The dispute in this appeal is whether administrative claims of the administrator/administratrix have a
higher priority than a debt of the deceased, specifically, a judgment that was rendered against the
deceased during his or her lifetime.
........................................
the deceased during his or her lifetime. We have reviewed the briefs and the record, and we conclude that the
district court did not err in concluding that an administrator's claims have higher priority than debts of the estate.
See SIIS v. United Exposition Services Co., 109 Nev. 28, 846 P.2d 294 (1993) (noting that issues of statutory
construction are reviewed de novo).
Under the applicable Nevada law, a judgment rendered against a deceased during that person's lifetime could
not be executed after that person's death; instead, a certified copy of the judgment had to be attached to the
statement of claim filed with the clerk and be acted on as any other claim. See NRS 147.210(1) (1997) (amended
1999). At the time of the judgment below, the statute provided that debts and charges of the estate must be paid
in the following order: (1) funeral expenses; (2) expenses of the last sickness; (3) family allowance; (4) [d]ebts
having preference by laws of the United States; (5) money owed to the Nevada Department of Human
Resources for medical assistance benefits; (6) wages due; (7) [j]udgments rendered against the deceased in his
lifetime and mortgages; and (8) [a]ll other demands against the estate. NRS 150.220 (1997) (amended 1999).
Appellants argue that since administrative claims (such as executrix fees and costs, and attorney fees) were
not listed in NRS 150.220(1)-(7), as it read when judgment was entered, they must therefore fall under the
catchall provision in subsection (8), behind judgments.
1

At the time the district court entered the order appealed from, attorneys and executors were entitled to
compensation under the statutory scheme, but the statute did not specify whether such compensation was subject
to the priority classification under NRS 150.220. See NRS 150.010 (1997) (amended 1999); NRS 150.060
(1997) (amended 1999). Former NRS 150.010 stated that [t]he executor or administrator shall be allowed all
necessary expenses in the care and management, as well as settlement, of the estate, and for his services such
fees as provided by law. NRS 150.010 (1997) (amended 1999). Former NRS 150.060(1) stated that
[a]ttorneys for executors, administrators and special administrators are entitled to reasonable compensation for
their services, to be paid out of the decedent's estate. NRS 150.060(1) (1997) (amended 1999).
Respondent argues that public policy requires that the administrative claims have priority, because, if they
did not, then administrators would decline administration where outstanding judgments threatened their
fees and costs.
__________

1
Appellants also argue that the existence of the judgment lien alone entitles them to a higher priority, citing as
support, First Nat. Bank of Coffeyville v. Mays, 708 P.2d 1129 (Okla. 1985). Mays, however, involved a
mortgage, not a judgment lien, and we do not find it persuasive.
........................................
ments threatened their fees and costs. Appellants respond that in such cases, the potential administrator should
decline the appointment and/or abandon the estate to the creditors. Although appellants maintain that creditors
may be appointed as administrators of an estate, it appears that this is so only if the decedent died intestate. See
NRS 139.040(1)(g) (1997) (amended 1999) (Administration of the estate of a person dying intestate shall be
granted to some one or more of the persons hereinafter mentioned, and they shall be respectively entitled in the
following order: . . . (g) Creditors who have become such during the lifetime of the deceased.).
[Headnotes 1-3]
The general principles of statutory construction are straightforward. It is well settled in Nevada that words
in a statute should be given their plain meaning unless this violates the spirit of the act. McKay v. Bd. of
Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986). In addition, no provision of a statute should be
rendered nugatory by this court's construction, nor should any language be made mere surplusage, if such a
result can be avoided. See Paramount Ins. v. Rayson & Smitley, 86 Nev. 644, 649, 472 P.2d 530, 533 (1970). In
other words, courts should avoid construing statues so that any provision or clause is rendered meaningless. See
Bd. of County Comm'rs v. CMC of Nevada, 99 Nev. 739, 744, 670 P.2d 102, 105 (1983). We also note that the
statute has recently been amended, and that [w]here a former statute is amended, or a doubtful interpretation of
a former statute rendered certain by subsequent legislation, it has been held that such amendment is persuasive
evidence of what the Legislature intended by the first statute. Sheriff v. Smith, 91 Nev. 729, 734, 542 P.2d 440,
443 (1975).
Effective October 1, 1999, the Nevada legislature enacted a thorough revision of the statute at issue here,
including amending NRS 150.220. As a result of the amendment, the statute now lists Expenses of
administration as the first item to be paid. NRS 150.220(1) (as amended). Expenses of administration are
defined as funeral expenses and expenses actually and properly incurred by a personal representative [i.e.,
executor or administrator] in the administration of an estate, plus the fees of the personal representative, any
attorney retained by him and any other consultant engaged by him. NRS 132.135 (1999).
[Headnotes 4, 5]
We conclude that the change in the statute is not retrospective. The general rule is that statutes are
prospective only, unless it clearly, strongly, and imperatively appears from the act itself that the legislature
intended the statute to be retrospective in its operation.
........................................
ation. See, e.g., State Ex Rel. Progress v. Court, 53 Nev. 386, 2 P.2d 129 (1931). No such retroactive intent
appears in the amendments to the statute. The change would have had no effect on the outcome of this appeal,
except that, under Smith, the amendment is persuasive evidence of what the legislature intended by the prior
statute.
[Headnotes 6, 7]
In addition to the effect of the recent amendments, our reading of the probate code indicates that the district
court reached the correct conclusion. Former NRS 150.010 provided, as stated above, that the executor or
administrator shall be allowed all necessary expenses . . . of the estate, and for his services such fees as provided
by law. NRS 150.010 (1997) (amended 1999) (emphasis added). Former NRS 150.060(1) stated that
[a]ttorneys for executors, administrators, and special administrators are entitled to reasonable compensation for
their services, to be paid out of the decedent's estate. NRS 150.060(1) (1997) (amended 1999) (emphasis
added). In light of the imperative language of these statutory provisions, we conclude that administrative
expenses and attorney fees therefore have a different and higher priority than the estate's various other debts and
charges. This conclusion is supported by the plain language of these statutory provisions, and results in all
provisions given meaning. Adopting appellants' view would result in the mandatory language of former NRS
150.010 and former NRS 150.060(1) being rendered nugatory in these circumstances. We conclude that former
NRS 150.220 did not specifically address administrative expenses and attorney fees because they were treated
separately in the statutory scheme, and were expressly required to be paid from the estate's assets. We therefore
conclude that administrative claims have a higher priority than the debts and charges of the estate listed in
former NRS 150.220, and affirm the order of the district court.
____________
116 Nev. 497, 497 (2000) Lipps v. Southern Nevada Paving
AMZEL MICHAEL LIPPS, SR., Appellant, v. SOUTHERN NEVADA PAVING; JEANNINE ROGERS;
CHRIS ROGERS; and RON WADE BELL, Respondents.
No. 32404
May 4, 2000 998 P.2d 1183
Appeal from a district court order granting respondents' motion for summary judgment. Eighth Judicial
District Court, Clark County; Kathy A. Hardcastle, Judge.
Father of deceased employee of trucking company that was hired directly as unlicensed independent
contractor by landowner to service heavy equipment owned and operated by licensed road paving subcontractor
brought wrongful death action against paving subcontractor. The district court granted summary judgment for
paving subcontractor. Employee's father appealed. The supreme court held that the employee and the paving
subcontractor were statutory co-employees under the Nevada Industrial Insurance Act (NIIA), and thus, the
paving subcontractor had immunity under the NIIA from the wrongful death action.
Affirmed.
Potter Law Offices, Las Vegas, for Appellant.
Parnell & Associates and Kevin R. Diamond, Donna M. Osborn, and Jean M. Siska, Las Vegas, for
Respondents.
The state workers' compensation system provides the exclusive remedy of an employee against his employer for workplace
injuries. NRS 616A.020(1), 616B.612(4).
Claims for tort damages in connection with workplace injuries are only sustainable against persons or entities other than a
statutory employer or persons in the same employ. NRS 616C.215(2)(a).
Deceased employee of trucking company that was hired directly as an unlicensed independent contractor by landowner to service
heavy equipment owned and operated by licensed road paving subcontractor, and the paving subcontractor, were statutory
co-employees under the Nevada Industrial Insurance Act (NIIA), and thus, the NIIA precluded employee's father from bringing
wrongful death action against paving subcontractor. NRS 616A.020(1), 616A.210(1), 616B.603(3), 616B.612(3), 616C.215(2)(a).
........................................
OPINION
Per Curiam:
Amzel Michael Lipps, Sr., appeals a district court order granting summary judgment based upon
respondents' claims of immunity under the Nevada Industrial Insurance Act (NIIA). As we conclude that
the fatally injured worker was a statutory co-employee of respondent Southern Nevada Paving, we affirm the
order of the district court.
This case arises from a tragic accident in which Amzel Michael Lipps, Jr., was killed while servicing a
construction truck owned by respondent, Southern Nevada Paving. At the time of the accident, Southern
Nevada Paving, a contractor licensed per NRS chapter 624, was performing road construction pursuant to a
subcontract with Gilbert Western Construction Company, a licensed general contractor. Gilbert Western
Construction Company was retained by the Fort Mojave Indian Tribe to build roads leading to its new casino
project near Laughlin, Nevada. Amzel Lipps, Jr., was an employee of C & J Trucking, an independent
contractor hired directly by the Tribe to service heavy equipment owned and operated by Southern Nevada
Paving. Southern Nevada Paving employees supervised Amzel Lipps, Jr., and his fellow C & J Trucking
employees.
1

Amzel Lipps, Sr., filed suit for his son's wrongful death. Thereafter, Southern Nevada Paving moved for
summary judgment, claiming immunity from suit under the Nevada Industrial Insurance Act. The district
court granted this motion based upon our decision in Tucker v. Action Equipment and Scaffold Co., 113 Nev.
1349, 951 P.2d 1027 (1997). Amzel Lipps, Sr., appeals.
DISCUSSION
Standard of review
Summary judgment is only appropriate when, after a review of the record viewed in a light most favorable
to the nonmoving party, there remain no issues of material fact and the moving party is entitled to a
judgment as a matter of law. See Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663
{19S5).
__________

1
Respondent Ron Wade Bell, a defendant below, was an employee of Southern Nevada Paving and was
operating the construction truck at the time of the accident.
Jeannine and Chris Rogers, owners of C & J Trucking, were also named as respondents, however,
appellant makes no claim that they are subject to common law liability in connection with this action.
........................................
Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985). On appeal, this court is to determine whether the
trial court erred in concluding that an absence of genuine issues of material fact justified its granting of summary
judgment. Bird v. Casa Royale West, 97 Nev. 67, 68, 624 P.2d 17, 18 (1981).
Immunity under the Nevada Industrial Insurance Act
[Headnotes 1, 2]
The Nevada workers' compensation system provides the exclusive remedy of an employee against his
employer for workplace injuries. See Frith v. Harrah South Shore Corp., 92 Nev. 447, 452, 552 P.2d 337, 340
(1976).
2
A corollary to the immunity rule is that claims for tort damages in connection with workplace injuries
are only sustainable against persons or entities other than a statutory employer or persons in the same employ.
See NRS 616.560(1) (recodified as NRS 616C.215(2)(a)).
3

NRS 616A.210(1) states in part that all subcontractors, independent contractors and the employees of either
shall be deemed to be employees of the principal contractor for the purposes of [the NIIA]. Therefore, NIIA
provides the exclusive remedy of any employee of a subcontractor injured as a result of the negligence of
another subcontractor's employee working for the same principal contractor because they are considered to be
working in the same employ'; hence, they are statutory co-employees. Tucker, 113 Nev. at 1354, 951 P.2d at
1030 (citing Aragonez v. Taylor Steel Co., 85 Nev. 718, 719-20, 462 P.2d 754, 755 (1969)).
In Meers v. Haughton Elevator, 101 Nev. 283, 701 P.2d 1006 (1985), we adopted the so-called normal
work test to determine whether the type of work a subcontractor does entitles it to NIIA immunity:
__________

2
See also 616.270(3) (recodified as NRS 616B.612(4)) (the employer is relieved from other liability for
recovery of damages or other compensation for such personal injuries); and NRS 616.370(1) (recodified as
NRS 616A.020(1)) ([t]he rights and remedies provided in [this chapter] . . . for an employee on account of an
injury by accident sustained arising out of and in the course of the employment shall be exclusive).

3
NRS 616.560(1) (recodified as NRS 616C.215(2)(a)):
2. When an employee receives an injury for which compensation is payable pursuant to the provisions of
chapters 616A to 616D, inclusive, or chapter 617 of NRS and which was caused under circumstances
creating a legal liability in some person, other than the employer or a person in the same employ, to pay
damages in respect thereof:
(a) The injured employee . . . may take proceedings against that person to recover damages . . . .
(Emphasis added.)
........................................
The test (except in cases where the work is obviously a subcontracted fraction of a main contract) is
whether that indispensable activity is, in that business, normally carried on through employees rather than
independent contractors.
Id. at 286, 701 P.2d at 1007 (quoting Bassett Furniture Industries, Inc. v. McReynolds, 224 S.E.2d 323 (Va.
1976)). As we noted in Tucker, the 1991 Nevada State Legislature enacted NRS 616.262 (recodified as NRS
616B.603), which provides in part:
1. A person is not an employer for the purposes of [this chapter] if:
(a) He enters into a contract with another person or business which is an independent enterprise; and
(b) He is not in the same trade, business, profession or occupation as the independent enterprise.
. . . .
3. The provisions of this section do not apply to:
(a) a principal contractor who is licensed pursuant to chapter 624 of NRS.
In Tucker, we reiterated our conclusion in Oliver v. Barrick Goldstrike Mines, 111 Nev. 1338, 1349, 905
P.2d 168, 174-75 (1995), that NRS 616B.603 is a codification of the test set forth in Meers. However, based
upon this provision, we concluded in Tucker that workplace immunity issues must be resolved by first
determining whether the workplace injury took place in a construction setting. If not, the statutory/Meers test
applies. In the construction context, we held that:
[R]emaining consistent with Oliver, further examination is required in construction cases. Initially, if the
defendant in a construction case is not a principal contractor licensed pursuant to NRS chapter 624, or is
not working pursuant to a construction agreement with such a licensed principal contractor, the Meers
test must be applied to determine immunity. On the other hand, if the defendant in a construction case is a
principal contractor licensed pursuant to NRS chapter 624, or is a licensed contractor working pursuant
to a construction agreement with a licensed principal contractor, and the defendant is performing part of
the construction work for which it is licensed when the injury occurs, that contractor is immune from
further suit as a matter of law. No further factual analysis is necessary.
Tucker, 113 Nev. at 1357, 951 P.2d at 1032 (footnotes omitted).
[Headnote 3]
It is uncontroverted that Amzel Lipps, Jr., was the direct employee of C & J Trucking, not Southern Nevada
Paving. It is also uncontroverted that C & J Trucking was not a contractor licensed under
NRS chapter 624
........................................
also uncontroverted that C & J Trucking was not a contractor licensed under NRS chapter 624 and that C & J
Trucking was retained separately by the Tribe, a non-NIIA participant. In Tucker, the defendant and the injured
workers' direct employer were both licensed contractors. The question is whether Southern Nevada Paving's
status as a principal contractor under NRS chapter 624, given the fact that this matter arises in the construction
context and given the fact that Amzel Lipps, Jr., was working with Southern Nevada Paving on this construction
project, compels the district court's decision under Tucker.
We conclude that the immunity provisions of the NIIA obtain as a matter of law. First, the matter at hand is a
construction case in which Southern Nevada Paving, a licensed contractor under NRS chapter 624, was working
pursuant to a construction agreement with a licensed principal contractor at the time of the accident. See NRS
616B.603(3); Tucker, 113 Nev. at 1357, 951 P.2d at 1032. Second, C & J Trucking was an independent
contractor working through its employees at the jobsite and is deemed a statutory co-employee of Southern
Nevada Paving. See NRS 616A.210(1).
Accordingly, Amzel Lipps, Jr., an employee of C & J Trucking was a statutory co-employee of Southern
Nevada Paving for the purposes of the NIIA, and appellant's tort action against respondents is precluded under
workers' compensation laws. See NRS 616B.612(3); NRS 616A.020(1); NRS 616C.215(2)(a). Thus, we hold
that the district court properly granted summary judgment in this matter.
We have considered appellant's remaining assignments of error and find them to be without merit.
4
Therefore, we affirm the district court's order.
__________

4
The Mojave Tribe is not an NIIA participant. We conclude that this has no bearing on the immunity issues
litigated in this appeal. The issue is whether Amzel Lipps, Jr., was a statutory co-employee of Southern Nevada
Paving pursuant to NRS chapter 616B.
____________
116 Nev. 502, 502 (2000) Carson City District Attorney v. Ryder
CARSON CITY DISTRICT ATTORNEY, CHILD SUPPORT ENFORCEMENT, and MARY A. RYDER,
Appellants, v. STEPHEN Q. RYDER, Respondent.
No. 29955
May 8, 2000 998 P.2d 1186
Appeal from an order of the district court rejecting a child support master's findings and recommendations
and declining to suspend respondent's driver's license. First Judicial District Court, Carson City; Michael R.
Griffin, Judge.
Former wife and district attorney appealed from order of the district court rejecting child support master's
findings and recommendations regarding former husband's payment of child support arrearages and refusing to
suspend former husband's driver's license for failure to pay child support. The supreme court, deciding an issue
of first impression, held that district court erred in concluding that only ongoing child support obligations needed
to be considered in determining whether former husband was in arrears or had satisfied arrearages pursuant to
statute.
Noel S. Waters, District Attorney, and Trina M. Dahlin and Mark Forsberg, Deputy District Attorneys,
Carson City, for Appellants.
Bowman & Robinson, Reno, for Respondent.
Statutory construction is a legal issue warranting independent appellate review. Consequently, no deference is given to the trial
court's interpretation.
2. Statutes.
Words in a statute will generally be given their plain meaning, and when a statute is clear on its face, courts may not go beyond the
statute's language to consider legislative intent.
3. Parent and Child.
The scope of past due payments, in statutory provision defining when parent is in arrears in the payment of child support,
encompasses all past due child support payments, including court-ordered arrearage payments, not just past due payments for an
ongoing support obligation. NRS 425.560(1)(a).
Arrearage payments, as well as ongoing support payments, must be considered in determining whether a parent is in arrears under
statutory provision defining when person is in arrears for payment of child support. NRS 425.560(1)(a).
The scope of past due payments, under statute providing that parent may satisfy child support arrearage if he is unable to pay all
past due payments and he pays amounts of overdue payments for preceding twelve months which court has determined are
in arrears,
........................................
months which court has determined are in arrears, encompasses all child support arrearages, including court-ordered arrearage
payments. Thus, district court must consider past due arrearages in determining whether parent has satisfied his arrearages pursuant to
such statute. NRS 425.560(2)(b)(1).
6. Divorce.
Former husband did not satisfy his child support arrearages with certain payment, and thus his driver's license could be suspended
for failure to pay child support, as amount of payment did not include all of his ongoing support and court-ordered arrearages, and
payment did not cover twelve months of ongoing support and court-ordered arrearages. NRS 425.510, 425.560(1)(a), (2)(a), (2)(b)(1).
OPINION
Per Curiam:
This is an appeal from the district court's order rejecting a child support master's findings and
recommendations and refusing to suspend respondent's driver's license for failure to pay child support. The
primary issue on appeal concerns the scope of certain provisions of the statutory scheme governing license
suspension for parents in arrears on child support payments. We conclude that the district court erred in its
interpretation of the statutory scheme, and we therefore reverse the district court's order and remand for
further proceedings.
STATEMENT OF FACTS
Respondent Stephen Ryder and appellant Mary Ann Ryder were divorced in San Francisco, California, in
1986. The court ordered Stephen to pay Mary Ann $200.00 per month for the support of their daughter and
to obtain medical insurance for her. Apparently by the middle of 1994, Stephen was in arrears with his
support payments. On September 23, 1994, the San Francisco superior court ordered Stephen to pay the
original child support obligation of $200.00 per month and, in addition, to pay $425.00 per month toward the
amount in arrears. The arrearages addressed in the California order covered the time period from March 1,
1983, to July 13, 1994, and amounted to approximately $20,000.00.
1

By 1996, both parties had relocated to Nevada. In February 1996, Stephen received a letter from the
Carson City district attorney's office notifying him that Mary Ann had filed a complaint that he was in
arrears for child support payments. The letter also informed Stephen that $625.00 per month
would be withheld from his wages.
__________

1
Although Stephen and Mary were divorced in 1986, it appears that Stephen's obligation to pay child
support began in 1983.
........................................
ter also informed Stephen that $625.00 per month would be withheld from his wages. Subsequently, a master
conducted a hearing to determine the propriety of suspending Stephen's driver's license for failing to pay his
court-ordered child support. Stephen was present at the hearing and represented by counsel. The master found
that Stephen was in arrears and recommended that Stephen pay $5,625.00 within 30 days and continue to pay
$625.00 per month under the existing California order.
Stephen objected to the master's findings and recommendations and requested a hearing in the district court.
The district court held two hearings regarding Stephen's objections to the master's report. In the first hearing, the
court found that Stephen had a continuing obligation to pay the amount stated in the California order. Several
days prior to the second hearing, Stephen made a payment of $3,450.00. The district court found that this
amount represented all of Stephen's arrearages to date in ongoing child support ($200.00 per month) as well as
two payments of $425.00 toward the arrearages pursuant to the California order. Based on Stephen's payment,
the district court made the following finding:
Therefore, this Court finds from the evidence before it, that Defendant is current in the ongoing child
support obligation, is not delinquent on that obligation for a period of two months and does not owe more
than $1,000 thereon. Even if the ongoing child support should exceed twelve months, Defendant has
satisfied . . . the arrearage by paying the preceding twelve month's payment.
The district court also determined that despite Stephen's delinquency in satisfying his arrearages under the
1994 California order, suspension of his driver's license was unjustified and counterproductive to the continued
payment of child support. Consequently, the district court disapproved the master's findings and
recommendations. Mary Ann and the district attorney's office appealed.
DISCUSSION
[Headnotes 1, 2]
The resolution of this appeal requires us to interpret NRS 425.560, a statutory provision that we have not
previously considered.
2
Statutory construction is a legal issue warranting independent appellate review.
__________

2
When enacted in 1995, the provisions governing license suspension for failure to pay child support were
codified at NRS 425.3837. These provisions took effect on January 1, 1996. The statutory provisions are now
found at NRS 425.510 and NRS 425.560. NRS 425.510 contains several amendments to the original language
that are not relevant here; NRS 425.560 contains provisions regarding arrears and satisfaction of those arrears
that are identical to those first adopted in NRS 425.3837. To avoid confusion, the statutory provisions at issue
here will be referred to by their current designation (NRS 425.560) throughout this opinion.
........................................
pendent appellate review. See Tighe v. Las Vegas Metro. Police Dep't., 110 Nev. 632, 877 P.2d 1032 (1994);
Maxwell v. SIIS, 109 Nev. 327, 849 P.2d 267 (1993). Consequently, no deference is given to the trial court's
interpretation. See State, Dep't Taxation v. McKesson Corp., 111 Nev. 810, 896 P.2d 1145 (1995) (noting that
questions of statutory interpretation are reviewed de novo). Words in a statute will generally be given their plain
meaning, and when a statute is clear on its face, courts may not go beyond the statute's language to consider
legislative intent. See Erwin v. State of Nevada, 111 Nev. 1535, 908 P.2d 1367 (1995); McKay v. Bd. of
Supervisors, 102 Nev. 644, 730 P.2d 438 (1986).
NRS 425.510 provides for a parent's driver's license suspension if that parent is in arrears with respect to
child support. NRS 425.560 governs when a parent is in arrears and states in pertinent part:
1. A person is in arrears in the payment for the support of one or more children if:
(a) He:
(1) Owes a total of more than $1,000 for the support of one or more children for which payment is
past due; and
(2) Is delinquent for not less than 2 months in payments for the support of one or more children or
any payments ordered by a court for arrearages in such payments; or
. . . .
2. A person who is in arrears in the payment for the support of one or more children may satisfy the
arrearage by:
(a) Paying all of the past due payments;
(b) If he is unable to pay all past due payments:
(1) Paying the amounts of the overdue payments for the preceding 12 months which a court has
determined are in arrears . . . .
[Headnote 3]
Paragraph 1(a), which defines arrears, and paragraph 2, which governs the satisfaction of arrears, each
require an analysis of past due payments. We conclude that the scope of past due payments in paragraph
1(a) encompasses all past due child support payments (including court-ordered arrearage payments), not just
past due payments for an ongoing support obligation. The plain language of the statute supports this
interpretation.
[Headnote 4]
Paragraph 1(a) provides that a person is in arrears in child support payments if [h]e [o]wes a total of more
than $1,000 for the support of one or more children for which payment is past due . . . and . . . [i]s delinquent for
not less than 2 months in payments for the support of one or more children or any payments ordered by a
court for arrearages in such payments."
........................................
ordered by a court for arrearages in such payments. (Emphasis added.) This language expressly includes any
arrearage payments, as well as ongoing support payments; thus, arrearage payments must be considered in
determining whether a parent is in arrears under NRS 425.560(1)(a). Accordingly, the district court erred in
determining that only ongoing child support obligations need be considered in determining whether Stephen was
in arrears pursuant to paragraph 1(a).
If a parent is in arrears for purposes of paragraph 1(a), NRS 425.560 requires the court to determine whether
the arrearages have been satisfied under paragraph 2. Paragraph 2 provides two ways in which arrearages may be
satisfied.
3
Pursuant to paragraph 2(a), arrearages may be satisfied by [p]aying all of the past due payments.
Paragraph 2(b)(1) provides that arrearages for child support payments may be satisfied by [p]aying the amounts
of the overdue payments for the preceding 12 months which a court has determined are in arrears. Although the
scope of past due payments in paragraph 2(b)(1) may be susceptible to more than one interpretation, we
conclude that past due payments encompass any arrearage payments that are due. Interpreting the term past
due payments in paragraph 2(b)(1) in this manner is internally consistent with our conclusion that past due
payments under paragraph 1(a) include any arrearage payments that are due. See Welfare Div. v. Washoe Co.
Welfare Dep't, 88 Nev. 635, 503 P.2d 457 (1972) (holding that a statute should always be construed so as to
avoid absurd results). Thus, all arrearages must be considered in determining whether a parent is in arrears
under paragraph 2(b)(1), but not in determining whether a parent has satisfied the arrearages under paragraph
1(a).
Furthermore, the legislative history of the statutory scheme reveals its overarching purposeto encourage
parents who are in arrears in child support payments to satisfy those obligations. See Minutes of the Assembly
Committee on Transportation, A.B. 425, 68th Sess. (Nev., April 27, 1995). This policy provides further support
that the scope of past due payments contemplates all past due arrearage payments, including orders for
arrearages from a court other than the court involved in the license suspension hearing.
[Headnote 5]
We therefore conclude that the scope of past due payments in paragraph 2(b)(1), as in paragraph 1(a),
encompasses all child support arrearages, including court-ordered arrearage payments.
__________

3
Paragraph 2(b)(2) also provides for the satisfaction of arrears if the delinquent parent has entered into an
approved repayment plan. That provision is not relevant here, however.
........................................
Accordingly, the district court erred in concluding that past due arrearages need not be considered in
determining whether Stephen had satisfied his arrearages pursuant to paragraph 2(b)(1).
[Headnote 6]
Pursuant to paragraph 2(a), Stephen did not satisfy his arrearages with his $3,450.00 payment, as that amount
did not include all of his ongoing support and court-ordered arrearages. Additionally, Stephen's $3,450.00
payment failed to satisfy paragraph 2(b)(1) because that payment did not cover twelve months of ongoing
support and court-ordered arrearages. To satisfy paragraph 2(b)(1), Stephen would be required to pay an amount
equal to his child arrearage payments as ordered by the California court, in addition to his ongoing child support
payment of $200.00 per month, for a period of twelve months.
As the district court erred in its interpretation of NRS 425.560, we reverse the district court's order and
remand this matter to the district court for further proceedings consistent with this opinion.
4

____________
116 Nev. 507, 507 (2000) Scrimer v. Dist. Ct.
ALICE SCRIMER and GILBERT SCRIMER, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE
JACK LEHMAN, District Judge, Respondents, and WILLIAM D. SCRIMER, Real Party in Interest.
No. 33367
CYNTHIA G. EVISTON, BETTIE CARTER, GARY COLVIN, Petitioners, v. THE EIGHTH JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE
HONORABLE VALORIE J. VEGA, District Judge, Respondents, and LOUIS R. PUSHNICK, Real
Party in Interest.
No. 34863
May 8, 2000 998 P.2d 1190
Original petitions for extraordinary relief.
Personal injury plaintiffs petitioned for writ of mandamus after the district court quashed untimely
service of the complaint,
__________

4
The district court was apparently concerned about Stephen's ability to continue working. However, NRS
483.490(5) provides that after a license has been suspended or revoked for failure to pay child support
arrearages, the department of motor vehicles may issue a restricted driver's license to an applicant permitting the
applicant to drive to and from work, to receive regularly scheduled medical care for himself or a member of his
immediate family, and to exercise a court-ordered right to visit a child.
........................................
the district court quashed untimely service of the complaint, and defendants in a separate personal injury action
petitioned for writ of mandamus or prohibition after the district court denied their motion to dismiss the
complaint based on untimely service. The supreme court held that: (1) settlement negotiations may constitute
good cause for untimely service of the complaint, overruling Lacey v. Wen-Neva, Inc., 109 Nev. 341, 849 P.2d
260 (1993); (2) an attorney's inadvertence does not necessarily preclude the plaintiff from establishing good
cause for failing to complete service within 120 days of the filing of the complaint, abrogating Dougan v.
Gustaveson, 108 Nev. 517, 835 P.2d 795 (1992); and (3) the personal injury plaintiffs had good cause for failing
to timely complete service of the complaints.
Petition granted in Docket No. 33367; petition denied in Docket No. 34863.
Burris & Thomas and Laurence B. Springberg, Las Vegas, for Petitioners Alice Scrimer and Gilbert Scrimer.
Turner & Curriden and Samuel A. Kitterman Jr., Las Vegas, for Petitioner Eviston.
Barker Brown Busby Crisman & Thomas and Curtis J. Busby and Michael D. Demman, Las Vegas, for
Petitioners Carter and Colvin, and Real Party in Interest William Scrimer.
Williams & Wiese and Donald H. Williams, Las Vegas, for Real Party in Interest Pushnick.
Once the defense of untimely service of process is timely raised in defendant's first responsive pleading or pre-answer motion to
dismiss, the defense is preserved for review, and the defendant may answer the complaint without fear of waiving the defense. NRCP
4(i), 12(b), (g), (h)(1).
2. Mandamus.
A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust,
or station, or to control an arbitrary or capricious exercise of discretion. NRS 34.160.
3. Prohibition.
Writs of mandamus and writs of prohibition are extraordinary remedies, and it is within the discretion of the supreme court to
determine if a petition will be considered. NRS 34.160, 34.320.
4. Mandamus; Prohibition.
The supreme court may exercise its discretion to grant a petition for writ of mandamus or writ of prohibition where an important
issue of law requires clarification. NRS 34.160, 34.320.
........................................
Dismissal for failure to timely complete service of the summons and complaint is mandatory unless there is a legitimate excuse for
having failed to serve within 120 days of the date the complaint is filed. NRCP 4(i).
6. Process.
The determination of good cause for failing to timely serve the summons and complaint after they are filed is within the district
court's discretion. NRCP 4(i).
7. Process.
Rule generally requiring service of the summons and complaint within 120 days of their filing was promulgated to encourage
diligent prosecution of complaints once they are filed. NRCP 4(i).
8. Process.
An attorney's inadvertence in failing to timely serve the summons and complaint does not necessarily preclude the plaintiff from
establishing good cause for failing to complete service within 120 days of the filing of the complaint; abrogating Dougan v.
Gustaveson, 108 Nev. 517, 835 P.2d 795 (1992). NRCP 4(i).
9. Process.
Appropriate considerations for determining whether plaintiff had good cause for failing to timely serve the summons and
complaint include: (1) difficulties in locating the defendant, (2) defendant's efforts at evading service or concealment of improper
service until after 120-day period has lapsed, (3) plaintiff's diligence in attempting to serve defendant, (4) difficulties encountered by
counsel, (5) running of applicable statute of limitations, (6) parties' good faith attempts to settle litigation during 120-day period, (7)
lapse of time between end of 120-day period and actual service of process on defendant, (8) prejudice to defendant caused by plaintiff's
delay in serving process, (9) defendant's knowledge of existence of the lawsuit, and (10) any extensions of time for service granted by
district court. NRCP 4(i).
10. Process.
Rule generally requiring timely service of the summons and complaint was not adopted to become an automatic sanction when a
plaintiff fails to serve the complaint within 120 days of filing. NRCP 4(i).
When making a determination of whether to dismiss the complaint under rule generally requiring timely service of the complaint,
the district court should recognize that good public policy dictates that cases be adjudicated on their merits. NRCP 4(i).
12. Process.
Negotiations with an eye to settlement, undertaken in good faith in a serious effort to settle the litigation during the 120-day period
after the filing of the complaint, may constitute good cause for untimely service of the complaint; overruling Lacey v. Wen-Neva, Inc.,
109 Nev. 341, 849 P.2d 260 (1993). NRCP 4(i).
Personal injury plaintiff had good cause for failing to timely serve the complaint, where plaintiff and defendant had engaged in
settlement negotiations during the 120-day period following the filing of the complaint, the complaint was served within the extended
deadline for service, dismissal would have been highly prejudicial because limitations period had expired, and defendant was not
prejudiced. NRCP 4(i), 6(b).
........................................
Plaintiff had good cause for failing to timely serve the complaint in the personal injury action, where the law firm representing
plaintiff had undergone serious personnel complications when the firm broke up, the complaint was served sixteen days after expiration
of the 120-day period following the filing of the complaint and was served within the extended deadline for service, and dismissal
would have effectively been with prejudice. NRCP 4(i), 6(b).
OPINION
Per Curiam:
These two writ petitions raise important issues under NRCP 4(i), which requires a plaintiff to serve a
summons and complaint within 120 days of the date that the complaint is filed unless the plaintiff can show
good cause why the complaint was not timely served. Docket No. 33367 is a petition for a writ of mandamus
challenging a district court order granting the real party in interest's motion to quash service of process
under NRCP 4(i) for failure to effect timely service. Docket No. 34863 is a petition for a writ of mandamus or
prohibition challenging a district court order denying petitioners' motion to dismiss the complaint under
NRCP 4(i). We take this opportunity to clarify the relevant standards under NRCP 4(i). We grant the petition
for a writ of mandamus in Docket No. 33367, and we deny the petition for a writ of mandamus or prohibition
in Docket No. 34863.
Docket No. 33367
On February 7, 1996, plaintiff/petitioner Alice Scrimer was in a car driven by defendant/real party in
interest William D. Scrimer, when she suffered injuries in an accident. On January 28, 1998, she and her
husband filed a complaint. Service of process was not completed within the 120-day period provided for in
NRCP 4(i), which expired on May 28, 1998. Petitioners apparently did not make any attempt to serve process
during the 120-day period, while settlement negotiations were underway, but served the Department of Motor
Vehicles (DMV) under the substitute service provisions of NRS 14.070 on June 10, 1998, thirteen days after
the 120-day period expired.
On June 16, 1998, petitioners moved for an extension of time for service under NRCP 6(b). The district
court granted the motion and gave petitioners until June 29, 1998, to complete service of process.
........................................
Real party in interest then moved to quash service. Petitioners opposed the motion. The district court granted
the motion, because petitioners failed to demonstrate good cause for the untimely service under Dougan v.
Gustaveson, 108 Nev. 517, 835 P.2d 795 (1992). Petitioners moved for reconsideration, which was denied.
Petitioners filed this petition for a writ of mandamus challenging the district court's order granting the real
party in interest's motion to quash service of process under NRCP 4(i). This court ordered an answer, which was
untimely submitted.
1

Docket No. 34863
On February 5, 1999, real party in interest Louis Pushnick filed a complaint against petitioners and others,
seeking damages as a result of two auto accidents. After 136 days had passed, Pushnick's counsel sought an
extension of time to serve petitioners. Counsel claimed excusable neglect, in that service had not been effected
because of a continual change in office staff, [and] an inadvertent confusion as to the attorney of record. It
appears that the law firm representing Pushnick had broken up during the relevant time period. On July 13,
1999, the district court granted an extension until July 19, 1999. On July 22, 1999, an amended order was
entered, granting an extension to serve until August 19, 1999. Service was effected on the DMV on July 20,
1999, forty-four days after the 120-day period had run.
[Headnote 1]
Subsequently, petitioners joined in a motion to dismiss the complaint under NRCP 4(i) for failure to serve
process within 120 days of filing, and to vacate the orders granting extensions of time. Pushnick opposed the
motion, which was denied. Petitioners filed this petition for a writ of mandamus or prohibition challenging the
district court's order denying petitioners' motion to dismiss the action under NRCP 4(i). This court ordered an
answer, which was timely filed in this court.
2
__________
1
Real party in interest filed a motion requesting permission to file an untimely answer, admitting that this
court's order requesting an answer was overlooked when it was received by counsel. Petitioners moved to strike
the answer as untimely. Having considered the motion and the opposition, we deny the motion to strike and
grant the motion to file the answer. We direct the clerk of the court to file the answer and appendix received
from real party in interest in Docket No. 33367, as well as petitioners' opposition to the motion to file an
untimely answer.

2
Petitioners requested that this court stay the district court proceedings, arguing that if the petitioners
answered the complaint or otherwise generally appeared in the proceedings below, they would waive the NRCP
4(i) issue that was the subject of their petition. On February 1, 2000, we entered a temporary stay. We note,
however, that the stay in this instance was unnecessary to
........................................
DISCUSSION
[Headnotes 2-4]
resulting from an office, trust or station, NRS 34.160, or to control an arbitrary or capricious exercise of
discretion. See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). A writ of prohibition
is available to arrest the proceedings of a district court exercising its judicial functions, when such proceedings
are in excess of the jurisdiction of the district court. See NRS 34.320. Neither writ will issue, however, if
petitioner has a plain, speedy and adequate remedy in the ordinary course of law. See NRS 34.170; 34.330.
Further, both writs are extraordinary remedies, and it is within the discretion of this court to determine if a
petition will be considered. See State ex rel. Dep't Transp. v. Thompson, 99 Nev. 358, 662 P.2d 1338 (1983). In
Smith v. District Court, 113 Nev. 1343, 1344, 950 P.2d 280, 281 (1997), this court explained that it will not
exercise its discretion to consider a petition for a writ of mandamus unless considerations of sound judicial
economy and administration militate in favor of granting a petition. In addition, this court may exercise its
discretion to grant a petition where an important issue of law requires clarification. Id. at 1345, 950 P.2d at 281.
[Headnotes 5, 6]
NRCP 4(i) states that service of the complaint and summons must be made within 120 days, or the action
will be dismissed without prejudice, unless a plaintiff can show good cause why service was not made during the
120-day period.
3
Dismissal is mandatory unless there is a legitimate excuse for failing to serve
within the 120 days.
__________
preserve the Rule 4(i) issue, because the petitioners would not have waived their argument under NRCP 4(i)
merely by answering the complaint or appearing in the action. To avoid waiver of a defense of untimely service
of process under NRCP 4(i), a defendant must raise the defense in its first responsive pleading or pre-answer
motion to dismiss. See NRCP 12(b), 12(g), and 12(h)(1) (setting forth procedures for objecting to insufficiency
of service of process); Dougan v. Gustaveson, 108 Nev. 517, 835 P.2d 795 (1992) (concluding that respondent's
objection to untimely service under NRCP 4(i) was itself untimely because respondent failed to object in its first
responsive pleading or pre-pleading motion). Once timely raised, the defense of untimely service is preserved for
review, and the defendant may answer the complaint without fear of waiving the NRCP 4(i) issue. We therefore
vacate our order granting the temporary stay.

3
If a service of the summons and complaint is not made upon a defendant within 120 days after the
filing of the complaint and the party on whose behalf such service was required cannot show good cause
why such service was not made within that period, the action shall be dismissed as to that defendant
without prejudice upon the court's own initiative with notice to such party or upon motion.
NRCP 4(i).
........................................
mandatory unless there is a legitimate excuse for failing to serve within the 120 days. See Dougan v. Gustaveson,
108 Nev. 517, 835 P.2d 795 (1992). The determination of good cause is within the district court's discretion. See
Lacey v. Wen-Neva, Inc., 109 Nev. 341, 849 P.2d 260 (1993).
[Headnote 7]
Rule 4(i) was promulgated to encourage diligent prosecution of complaints once they are filed. See Moore v.
Shreck, 102 Nev. 163, 717 P.2d 49 (1986) (reversing an order dismissing a complaint for lack of diligent
prosecution because no standard then provided for such a dismissal, and at the same time, announcing the
adoption of NRCP 4(i)). NRCP 4(i) is based on an analogous federal rule, which was adopted as a
case-management tool. As two of the leading commentators on federal procedure have observed:
The 120-day limit on service . . . reflects the modern trend of encouraging more efficient litigation by
reducing the time between the institution of an action and service of process. It is hoped that the amended
rule, by giving the court the authority to dismiss the plaintiff's action on its own initiative when the time
requirement is not met, will help ease the increasing backlog of cases in the federal courts and the delay
in their movement. In that sense, Rule 4(j) attempts to harmonize the open-door policy of the federal
court system and the mandate in Rule 1 for the just, speedy, and inexpensive determination of every
action.
4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 1137 at 385 (2d ed. 1987)
(footnotes omitted).
4

There are four leading cases from this court construing NRCP 4(i). In Domino v. Gaughan, 103 Nev. 582,
747 P.2d 236 (1987), counsel's illness and inexperience were factors in reversing a dismissal under NRCP 4(i),
particularly where there was apparently no prejudice to defendants. There, inexperienced Nevada counsel filed a
complaint at the request of California counsel and thereafter returned the file to California counsel. California
counsel retained the file until ten days before the 120-day time period expired. California counsel then asked
Nevada counsel to serve the defendant. Nevada counsel, however, experienced difficulties serving the summons
and complaint and in communicating with California counsel. He also fell ill. Although Nevada counsel
attempted service within the 120-day time period, he was unable to complete service until nine days after the
NRCP 4(i) deadline.
__________

4
The analogous Federal Rule of Civil Procedure is currently Rule 4(m), although it was Rule 4(j) when this
passage was written.
........................................
The dismissal was effectively with prejudice since the statute of limitations had expired. This court held that
good cause existed to excuse late service of the summons and complaint. Id. at 584, 747 P.2d at 237.
5

In Dallman v. Merrell, 106 Nev. 929, 803 P.2d 232 (1990), this court affirmed an order dismissing one of
two defendants under NRCP 4(i) where service was effected 108 days late. Dallman sued a car dealership and its
employee, Merrell. Dallman's original counsel promptly served the dealership, but did not serve Merrell because
counsel had trouble locating him. Dallman later retained new counsel, who noted that Merrell had not been
served, and used a private investigator to obtain Merrell's address through driver's license records and other car
salesmen. The district court dismissed the complaint as to Merrell without prejudice, holding that Dallman had
not shown good cause for the failure to serve within 120 days of filing the complaint. It is unclear whether the
dismissal was effectively with prejudice; nevertheless, the district court dismissed only one of the two defendants
and therefore did not dismiss Dallman's entire action. Id. at 930-31, 803 P.2d at 232-33. This court held that
Dallman's claim that he could not locate Merrell (despite having tried the telephone directory, a city directory,
and a process server) did not establish good cause since Merrell's address was readily available from the DMV
and the county assessor's office. The fact that service was tardy by 108 days was also a consideration. In
addition, the district court had concluded that Merrell had suffered some prejudice from the delay. Id. at 930,
803 P.2d at 232-33.
[Headnote 8]
In Dougan v. Gustaveson, 108 Nev. 517, 835 P.2d 795 (1992), the summons and complaint were filed just
before the statute of limitations ran, and the defendants were served just after the 120-day period expired.
Process was served eight days late because a secretary had erroneously calendared the date when service was
due. After answering the complaint, some of the defendants filed a motion to dismiss for tardy service under
NRCP 4(i), and for failure to hold an early case conference and submit an early case conference report under
NRCP 16.1. The district court granted the motions and dismissed the complaint on both grounds. Although the
dismissal was without prejudice, it was effectively with prejudice, since the statute of limitations had run. On the
Rule 4(i) issue, this court held that good cause was not present because an attorney's "inadvertence
does not justify untimely service."
__________

5
We note that the federal courts, under Federal Rule of Civil Procedure 4(m), the current analog to NRCP
4(i), may consider if the applicable statute of limitations would bar the refiled action, or if the defendant is
evading service or conceals a defect in attempted service. Fed. R. Civ. P. 4 advisory committee's notes.
........................................
because an attorney's inadvertence does not justify untimely service. Dougan, 108 Nev. at 520, 835 P.2d at
797. This court also concluded, however, that the defendants had waived the issue under NRCP 4(i) by failing to
raise it in a timely fashion, and that the district court had erred in dismissing the complaint under NRCP 16.1.
The district court's judgment of dismissal was therefore reversed. Id. The Dougan court's observation regarding
counsel's inadvertence, is merely dictum, in light of its conclusions regarding the NRCP 4(i) issue on the basis
of waiver, and is therefore not controlling in any analysis of good cause under NRCP 4(i).
Finally, in Lacy v. Wen-Neva, Inc., 109 Nev. 341, 849 P.2d 260 (1993), plaintiff Lacey filed a complaint
against defendant Wen-Neva on the final day of the limitations period, and then served a copy of the summons
and complaint on the defendant's agent. Both parties acknowledged that service was improper. In fact, the
defendant informed Lacey in writing that it would not respond to the complaint until it was properly served. Id.
at 343-44, 849 P.2d at 261. After doing nothing with respect to service for more than one year, Lacey properly
served the defendant with an amended complaint. The defendant moved to dismiss, and the district court granted
the motion. On appeal, Lacey argued that good cause excused the untimely service, because the defendant had
actual notice of the action and had entered into settlement negotiations with him. This court disagreed:
Settlement negotiations are no substitute for proper service of a party, and the fact that the parties were
negotiating a settlement did not relieve Lacey from properly serving the complaint within 120 days.
Absent an agreement between the parties as part of the settlement negotiations that the service
requirements of NRCP 4(i) would not be strictly enforced, settlement negotiations alone will not
constitute good cause for a plaintiff's failure to serve process within 120 days of the filing of the
complaint.
. . . .
While there may be circumstances which demonstrate an understanding or agreement between parties
sufficient to constitute good cause for the plaintiff's failure to timely serve the complaint, there has
been no showing in this case of any agreement between the parties that the time restrictions of the Nevada
Rules of Civil Procedure would not be strictly enforced.
Id. at 345-46, 849 P.2d at 262 (citation omitted).
In addition, Lacey held that filing an amended complaint against the same party does not restart the 120-day
period for service:
........................................
[S]ince Lacey did not add a new party to the action, service had to be made within 120 days of filing the
original complaint. Lacey did not effect service of either the original or amended complaint within 120
days of the filing of the original complaint, and therefore the district court did not err in dismissing
Lacey's action pursuant to NRCP 4(i).
Id. at 349, 849 P.2d at 265 (footnote omitted).
[Headnotes 9-11]
We conclude that a number of considerations may govern a district court's analysis of good cause under
NRCP 4(i), and we emphasize that no single consideration is controlling. Appropriate considerations include: (1)
difficulties in locating the defendant, (2) the defendant's efforts at evading service or concealment of improper
service until after the 120-day period has lapsed, (3) the plaintiff's diligence in attempting to serve the defendant,
(4) difficulties encountered by counsel, (5) the running of the applicable statute of limitations, (6) the parties'
good faith attempts to settle the litigation during the 120-day period, (7) the lapse of time between the end of the
120-day period and the actual service of process on the defendant, (8) the prejudice to the defendant caused by
the plaintiff's delay in serving process, (9) the defendant's knowledge of the existence of the lawsuit, and (10)
any extensions of time for service granted by the district court.
6
Underlying these considerations is the policy
behind Rule 4(i)to encourage the diligent prosecution of complaints. Rule 4(i) was not adopted, however, to
become an automatic sanction when a plaintiff fails to serve the complaint within 120 days of filing. When
making a determination under NRCP 4(i), the district court should recognize that good public policy dictates
that cases be adjudicated on their merits.
__________

6
In Lacey, defendant promptly warned plaintiff that service was defective, and waited for proper service of
the original complaint. As noted above, instead of serving the original complaint, plaintiff waited a year, filed an
amended complaint, and properly served the amended complaint. Id. at 348, 849 P.2d at 264. Lacey noted that if
service is made upon a defendant within 120 days, but the service is defective, and the defectiveness of the
service was not called to the plaintiff's attention until after the 120-day period runs, the NRCP 4(i) good cause'
standard may, under the circumstances, be applied to prevent the inequity of allowing the defendant's
concealment of the defectiveness of the service to result in dismissal of the action. Id. at 348 n.4, 849 P.2d at
264 n.4.
We further observe that if the 120-day period is running out, a plaintiff may seek to extend the time to serve
under NRCP 6(b). As occurred in the proceedings below, even if the 120-day period has expired, a plaintiff may
obtain an extension of the service period under NRCP 6(b) upon a showing of excusable neglect. See NRCP
6(b)(2). If a district court finds good cause for tardy service under NRCP 4(i), it should explicitly extend the
time for service, and set a reasonable date by which service should be accomplished.
........................................
adjudicated on their merits. Kahn v. Orme, 108 Nev. 510, 516, 835 P.2d 790, 794 (1992) (citing Hotel Last
Frontier v. Frontier Prop., 79 Nev. 150, 155-56, 380 P.2d 293, 295 (1963)).
[Headnote 12]
We specifically disavow and overrule Lacey to the extent that it stands for the proposition that settlement
negotiations alone will not constitute good cause for a plaintiff's failure to serve process within 120 days of the
filing of the complaint. Lacey, 109 Nev. at 345, 849 P.2d at 262. Negotiations with an eye to settlement,
undertaken in good faith in a serious effort to settle the litigation during the 120-day period, may constitute good
cause for untimely service under NRCP 4(i). Additionally, we renounce our dictum in Dougan, which suggests
that an inflexible approach should be used in assessing motions to dismiss under Rule 4(i).
[Headnote 13]
In Docket No. 33367, we conclude that extraordinary relief is warranted. Under Smith v. District Court, 113
Nev. 1343, 1345, 950 P.2d 280, 281 (1997), as noted above, we may exercise our discretion to grant a petition
where an important issue of law requires clarification. It appears that the district court sensed a trend in our
NRCP 4(i) cases from which we now depart. In light of our clarification of appropriate NRCP 4(i) standards, as
well as our disapproval of Lacey and Dougan, we conclude that the petition should be granted. We now
expressly conclude that a balanced and multifaceted analysis is warranted in determining whether to dismiss a
complaint under Rule 4(i). Here, petitioners served the DMV shortly after the 120-day period expired, after
having engaged in settlement negotiations, and within the extended period for service. In addition, it is
significant that the district court had granted the petitioners additional time for service, and that service was
effected before the extended deadline expired. We also note that the dismissal was highly prejudicial to
petitioners, as the statute of limitations had expired, while there appeared to be little or no prejudice from late
service to the real party in interest. We therefore grant the petition in Docket No. 33367, and direct the clerk of
this court to issue a writ of mandamus compelling the district court to vacate its order dismissing the complaint
in District Court Case No. A383803.
[Headnote 14]
In Docket No. 34863, we conclude that the district court neither exceeded its jurisdiction nor manifestly
abused its discretion in refusing to dismiss the complaint under NRCP 4(i). There, the law firm representing
Pushnick underwent serious personnel complications, and Pushnick sought an extension of time to serve the
complaint sixteen days after the 120-day period had expired.
........................................
Additionally, Pushnick's counsel had obtained additional time to serve petitioners, and served them within the
time permitted, and it appears that any dismissal would have effectively been with prejudice. We perceive no
error meriting extraordinary relief and accordingly deny the petition in Docket No. 34863.
____________
116 Nev. 518, 518 (2000) Woerner v. Justice Court
JANE BELLZORA WOERNER, Petitioner, v. THE JUSTICE COURT OF RENO TOWNSHIP, in and for
THE COUNTY OF WASHOE, and THE HONORABLE HAROLD G. ALBRIGHT, Justice of the
Peace, and RICHARD A. GAMMICK, Washoe County District Attorney, Respondents, and THE
STATE OF NEVADA, Real Party in Interest.
No. 34277
June 5, 2000 1 P.3d 377
Original petition for writ of certiorari or mandamus challenging an order of the justice's court in a criminal
action charging petitioner with murder. Justice's Court of Reno Township, Washoe County; Harold G. Albright,
Justice of the Peace.
Petitioner charged with first-degree murder and ordered to undergo competency evaluation sought writ of
mandamus directing that charge be dismissed on ground of earlier finding that she was not competent to stand
trial and that there was no substantial probability that she would attain competency in foreseeable future. The
supreme court held that: (1) petitioner was not entitled to dismissal of refiled charge on ground that de facto
presumption of incompetence created by earlier ruling had not been rebutted, (2) justice court exceeded its
statutory authority by failing to conduct preliminary hearing on first-degree murder charge and instead ordering
competency evaluation, and (3) district attorney did not act improperly in refiling first-degree murder charge
against petitioner.
Petition granted in part and denied in part.
Michael R. Specchio, Public Defender, John Reese Petty, Chief Deputy Public Defender, and Kathleen M.
O'Leary, Deputy Public Defender, Washoe County, for Petitioner.
Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Terrence
P. McCarthy, Deputy District Attorney, Washoe County, for Respondents.
........................................
1. Mandamus.
The supreme court has original jurisdiction to issue writs of mandamus. Const. art. 6, 4.
2. Mandamus.
A writ of mandamus will issue to control a court's arbitrary or capricious exercise of discretion.
3. Mental Health.
There is no statutory restriction on charging a mentally incompetent person with a crime.
4. Criminal Law.
The proper procedure to reinitiate a criminal charge previously dismissed based upon a finding that the accused is not competent
to stand trial is identical to the procedure to initiate any other criminal charge, and thus, irrespective of whether there is probable cause
that the accused is competent, an arrest warrant or summons may issue upon probable cause that a crime has been committed and that
the accused committed it, and nothing more. NRS 171.106, 178.425(5).
5. Criminal Law.
Petitioner previously found not competent to stand trial on first-degree murder charge three years earlier was not entitled to
dismissal of refiled charge on ground that de facto presumption of incompetence created by earlier ruling had not been rebutted. No
such presumption exists.
6. Criminal Law.
Justice court exceeded its statutory authority by failing to conduct preliminary hearing on first-degree murder charge and instead
ordering competency evaluation for petitioner found not competent to stand trial on same charge three years earlier, and thus petitioner
was entitled to writ of mandamus directing justice court to vacate order requiring evaluation and to conduct preliminary hearing to
determine if there existed probable cause sufficient to bind over petitioner to district court.
7. Justices of the Peace.
The justice courts are courts of limited jurisdiction and have only the authority granted by statute.
8. Criminal Law.
The justice court's role at the preliminary hearing is to determine whether there is probable cause to find that an offense has been
committed and that the defendant has committed it, and if the justice court finds probable cause, the court must order the defendant
bound over for trial in the district court.
9. Indictment and Information; Injunction.
District attorney did not act improperly in refiling first-degree murder charge against petitioner found not competent to stand trial
on same charge three years earlier, based upon order of family court discharging petitioner from involuntary commitment to mental
health facility, and thus petitioner was not entitled to order enjoining district attorney from further prosecution of her.
........................................
OPINION
Per Curiam:
Petitioner was charged with one count of first-degree murder. The district court found petitioner
incompetent to stand trial. The district court further found that there was no substantial probability that
petitioner would attain competency in the foreseeable future and dismissed the case. Over the next three
years, the district court denied the district attorney's two civil petitions for petitioner's continued involuntary
commitment because the district court found that involuntary commitment was not the least restrictive
environment for petitioner. The district attorney refiled the first-degree murder charge against petitioner, and
petitioner was arrested. Petitioner moved to dismiss, arguing that the district court's original competency
ruling was still intact and binding on the justice's court. The justice's court did not dismiss the case but
ordered that petitioner be taken to Lake's Crossing for a competency evaluation. Petitioner filed this original
petition, requesting this court to direct the justice's court to dismiss the case. Petitioner further requests that
we direct the district attorney to refrain from prosecuting petitioner until it is proven in district court by a
preponderance of the evidence that petitioner is competent to stand trial.
We do not grant the relief requested by petitioner, but conclude that a writ of mandamus should issue
because the justice's court exceeded its jurisdiction in sending petitioner to Lake's Crossing for a competency
evaluation, in considering the issue of petitioner's competence, and in failing to conduct a preliminary
hearing.
FACTS
Petitioner Jane Bellzora Woerner was charged by way of information with one count of first-degree
murder. The information alleged that petitioner willfully and deliberately killed Kevin Brickey with a motor
vehicle on U.S. 395 in Washoe Valley, when she steered her vehicle out of the travel lanes and struck Brickey
from the rear as he walked along the right shoulder of the road. The district court found that petitioner was
incompetent to stand trial and a danger to herself or to society. The district court further found that there was
no substantial probability that she would attain competency in the foreseeable future. Based on these
findings, the district court ordered that petitioner be involuntarily committed to the Nevada Mental Health
Institute and that the case be dismissed,
........................................
be dismissed, pursuant to NRS 178.425,
1
because petitioner had no substantial probability of attaining
competency in the foreseeable future. Thereafter, petitioner was involuntarily committed to the Nevada Mental
Health Institute.
Two years after the criminal case was dismissed, the district attorney initiated in the family division
(hereafter family court) of the district court a civil proceeding against petitioner, seeking her continued
involuntary commitment. The family court found that petitioner was mentally ill, that she was not a danger to
others, and that, although petitioner was a danger to herself, her husband provided assistance and support such
that involuntary hospitalization was not the least restrictive environment for her. Accordingly, the family court
ordered petitioner discharged as an outpatient from the Nevada Mental Health Institute, unless she chose to stay
as a voluntary patient. The family court's order did not address the issue of petitioner's competency to stand trial.
The parties did not seek appellate review of the order.
Shortly thereafter, the district attorney reinitiated the criminal murder proceedings by filing with the justice's
court a criminal complaint against petitioner. However, petitioner chose to voluntarily remain hospitalized at the
Nevada Mental Health Institute, and the district attorney did not obtain an arrest warrant or take other action on
the criminal complaint at that time.
Just over a year later, the district attorney initiated in family court another civil proceeding seeking the
involuntary commitment of petitioner. Without addressing petitioner's competency to stand trial, the family court
denied the petition because it found that petitioner was not a danger to others and that, because of the support
from her husband, she was not a danger to herself, so hospitalization was not the least restrictive environment for
her. The district attorney again requested a stay pending possible appeal, but the family court denied this request,
ordering that petitioner be released as an outpatient upon entry of the written order. The record does not indicate
when, but shortly before petitioner would have been discharged from the Nevada Mental Health Institute, she
was arrested and booked into the Washoe County Jail on the criminal complaint that had been
refiled a year previously.
__________

1
The order did not cite a subsection of NRS 178.425, although it used the language of subsection 5. NRS
178.425(5) states, as follows:
Whenever the defendant has been found incompetent, with no substantial probability of attaining
competency in the foreseeable future, and released from custody or from obligations as an outpatient
pursuant to paragraph (d) of subsection 3 of NRS 178.460, the proceedings against defendant which were
suspended must be dismissed. No new charge arising out of the same circumstances may be brought after
a period, equal to the maximum time allowed by law for commencing a criminal action for the crime with
which the defendant was charged, has lapsed since the date of the alleged offense.
........................................
County Jail on the criminal complaint that had been refiled a year previously.
Without waiving her right to a preliminary hearing, petitioner filed a motion to dismiss with the justice's
court. The justice's court concluded that the district court's original competency ruling was still intact and
binding on the justice's court because the family court's subsequent discharge orders did not address the issue of
competency. Although neither party requested a competency evaluation, the justice's court ordered the county
sheriff to take petitioner to Lake's Crossing for an evaluation, postponing a decision on the motion to dismiss
until after the evaluation. In addition, the justice's court declined to hold a preliminary hearing, concluding that
proceeding with a preliminary hearing would be a useless act because petitioner's incompetence rendered her
unable to understand the nature of the charges against her or assist her counsel in her defense.
Petitioner then brought this original petition for a writ of certiorari or mandamus, requesting that this court:
(1) direct the justice's court to dismiss petitioner's criminal case because the district court had already found
petitioner to be incompetent to stand trial and no contrary finding had been made; and (2) direct the district
attorney to refrain from seeking further criminal proceedings against petitioner and from seeking incarceration of
petitioner until he first establishes in district court by a preponderance of the evidence that petitioner is
competent.
DISCUSSION
Petitioner seeks a writ of mandamus on an issue of first impression before this court: whether there is a
special prerequisite to initiating a criminal proceeding against a defendant who has previously had the same
criminal charge dismissed under NRS 178.425(5), pursuant to a finding that the defendant was incompetent
with no substantial probability of attaining competency in the foreseeable future.
[Headnotes 1, 2]
A writ of mandamus:
may be issued by the supreme court . . . to compel the performance of an act which the law especially
enjoins as a duty resulting from an office, trust or station; or to compel the admission of a party to the
use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded
by such inferior tribunal, corporation, board or person.
NRS 34.160. This court has original jurisdiction to issue writs of mandamus under Nev. Const. art. 6, 4.
Ashokan v. State, Dep't of Ins., 109 Nev. 662, 667, S56 P.2d 244, 247 {1993)
........................................
of Ins., 109 Nev. 662, 667, 856 P.2d 244, 247 (1993) (citing State of Nevada v. McCullough, 3 Nev. 202
(1867)). A writ of mandamus will issue to control a court's arbitrary or capricious exercise of discretion.
Marshall v. District Court, 108 Nev. 459, 466, 836 P.2d 47, 52 (1992) (citing Round Hill Gen. Imp. Dist. v.
Newman, 97 Nev. 601, 637 P.2d 534 (1981)). We conclude that the request for mandamus is properly before
this court because the order of the justice's court sending petitioner to Lake's Crossing to be evaluated is not a
final judgment from which an appeal may be taken and there is no other remedy at law available to petitioner.
See Wardleigh v. District Court, 111 Nev. 345, 350, 891 P.2d 1180, 1183 (1995).
A. Prerequisite showing of competency
At the heart of this controversy is NRS 178.425(5), which provides for dismissal of a criminal case where, as
here, the defendant is adjudged incompetent with no substantial probability of obtaining competency in the
foreseeable future. The central dispute is over the procedure used to reinitiate a criminal charge thus dismissed.
The statute does not provide a procedure whereby charges can be refiled if, as happened in this case, the
district attorney suspects that the defendant has obtained competency and can stand trial if the charges are
refiled. Specifically at issue is whether a prerequisite showing of competency is required before the dismissed
charges can be refiled.
[Headnote 3]
We conclude that respondents are correct in asserting that incompetence only prevents a criminal defendant
from being tried or punished and has no bearing on whether a defendant can be charged with a crime. NRS
178.400(1) only states that [a] person may not be tried or adjudged to punishment for a public offense while
he is incompetent. There is no restriction on charging an incompetent person with a crime.
NRS 178.425(5) specifically contemplates refiling of criminal charges after a prior dismissal under that
statute. However, the only restriction it imposes on refiling is that of the statute of limitations, merely clarifying
that the statute of limitations runs from the date of the alleged offense and is not affected or tolled by any of the
competency proceedings otherwise outlined in NRS 178.425, nor is it affected by a dismissal under NRS
178.425(5). The statute imposes no other restrictions on refiling, as refiling is specifically mentioned but not
restricted except by the statute of limitations provision. We decline to impose a competency prerequisite, as we
do not imply provisions not expressly included in [a] legislative scheme. SIIS v. Wrenn, 104 Nev. 536, 539,
762 P.2d 884, 886 (1988).
........................................
[Headnote 4]
With no prerequisite showing of competency mandated by statute, we conclude that the proper procedure to
reinitiate a criminal charge previously dismissed under NRS 178.425(5) is identical to the procedure to initiate
any other criminal charge, to wit: irrespective of whether there is probable cause that an accused is competent,
an arrest warrant or summons may issue upon probable cause that a crime has been committed and that the
named person committed it, and nothing more. NRS 171.106.
2
If no procedure is specifically prescribed by
this title [Title 14, Procedure in Criminal Cases], the court may proceed in any lawful manner not inconsistent
with this title or with any other applicable statute. NRS 178.610. Because the reinitiating of the criminal
complaint against petitioner is not inconsistent with any other statute, and in fact is in complete accord with the
probable cause requirements of NRS 171.106, we conclude that petitioner was properly charged, properly
arrested and properly brought before the justice's court. In light of this conclusion, we now address additional
issues raised by this petition.
B. Motion to dismiss
[Headnote 5]
Petitioner contends that the justice's court exceeded its jurisdiction in not dismissing her case when the
district attorney failed to rebut the de facto presumption of incompetence created by the district court's original
ruling that petitioner was incompetent to stand trial. We disagree. Here, the justice's court was not empowered
to even consider the issue of competence because NRS 178.405 gives the authority to decide that question to the
trial court, which in this case is the district court, not the justice's court. See Baccari v. State, 97 Nev. 109, 624
P.2d 1008 (1981) (stating that competency is an issue for the trial court). Moreover, by dismissing the case
because the previous finding of incompetence had not been rebutted, the justice's court would have imposed an
errant prerequisite upon the refiling of a criminal case previously dismissed under NRS 178.425(5).
Accordingly, we instruct the justice's court to deny the motion to dismiss because it has no jurisdiction to hear
the motion.
__________

2
NRS 171.106 also states that the offense committed must be one that is triable within the county. This
could be construed as requiring probable cause of the defendant's competency at the outset of the criminal
proceeding, because, technically, only a competent defendant can go to trial, so the only triable offenses are
those capable of being taken to trial. However, we construe the phrase as carrying only jurisdictional import,
meaning that the offense must be one over which courts of that county have jurisdiction. In any event, petitioner
and respondents do not cite this language as significant.
........................................
C. Preliminary hearing and competency evaluation
[Headnote 6]
We next consider whether the justice's court exceeded its jurisdiction in ordering a competency evaluation
and failing to conduct a preliminary hearing. Petitioner does not address these issues in their own right,
because her argument focuses on why the case should never have come before the justice's court to begin with.
However, the district attorney concedes that the justice's court erred in both respects and acted in excess of its
jurisdiction. We conclude that the district attorney is correct and that a writ of mandamus should issue directing
the justice's court to hold a preliminary hearing after vacating its order sending petitioner to Lake's Crossing
for a competency evaluation.
[Headnotes 7, 8]
The justice courts are courts of limited jurisdiction and have only the authority granted by statute. State
of Nevada v. Justice Court, 112 Nev. 803, 805, 919 P.2d 401, 402 (1996) (citing Parsons v. District Court, 110
Nev. 1239, 1243, 885 P.2d 1316, 1319 (1994)). NRS 4.370(3) states that [j]ustices' courts have jurisdiction of
all misdemeanors and no other criminal offenses except as otherwise provided by specific statute. No statute
provides that the justice's court may try a murder case. Thus, NRS 171.196 applies, which states in pertinent
part as follows:
1. If an offense is not triable in the justice's court, the defendant must not be called upon to plead. If
the defendant waives preliminary examination, the magistrate shall immediately hold him to answer in
the district court.
2. If the defendant does not waive examination, the magistrate shall hear the evidence within 15
days, unless for good cause shown he extends such time.
Because murder is not triable in the justice's court, and because petitioner declined to waive her right to a
preliminary hearing, the justice's court should have conducted a preliminary hearing. Petitioner's competency
is not within the scope of the preliminary hearing. The justice court's role at the preliminary hearing is to
determine whether there is probable cause to find that an offense has been committed and that the defendant
has committed it. If the justice court finds probable cause, the court must order the defendant bound over for
trial in the district court. State of Nevada v. Justice Court, 112 Nev. at 806, 919 P.2d at 402 (citing NRS
171.206). See also State v. Fuchs, 78 Nev. 63, 69, 368 P.2d 869, 871 (1962) (holding that at a preliminary
hearing a justice's court does not consider defenses or pass on the sufficiency of the evidence to justify
conviction, but only decides if there is enough evidence to bind over defendant to the district court
for trial).
........................................
evidence to bind over defendant to the district court for trial). For these reasons, we conclude that the justice's
court should vacate its order sending petitioner to Lake's Crossing for evaluation and forthwith conduct a
preliminary hearing to determine if there exists probable cause sufficient to bind over petitioner to the district
court. At that time, petitioner may choose to seek a competency determination by the district court and seek to
have the charges dismissed again under NRS 178.425(5).
D. Conduct of the district attorney
[Headnote 9]
Petitioner contends that the district attorney arbitrarily and capriciously reinitiated the criminal charges
against petitioner and asks this court to enjoin the district attorney from further prosecuting petitioner. The
district attorney responds by arguing that both his method and motive in reinitiating the case against petitioner
were proper. He defends his motive by asserting that he acted in good faith in reinitiating the case because the
family court's discharge orders raised legitimate questions in his mind as to petitioner's continuing
incompetence. The district attorney defends his method by arguing that the complaint was properly filed
because there was adequate probable cause that a crime had been committed by petitioner and that no showing
of probable cause of petitioner's competency was required by statute.
We conclude that there was nothing arbitrary or capricious in the district attorney's conduct here. We agree
that petitioner's impending discharge to outpatient status could serve as a legitimate reason to question whether
petitioner was still incompetent. While the family court discharge orders did not address the issue of
competency, it was not unreasonable for the district attorney to question whether petitioner's competency was
affected. Accordingly, we decline to enjoin the district attorney from further prosecuting petitioner.
CONCLUSION
Based on the foregoing, we conclude that the justice's court exceeded its jurisdiction in considering the issue
of petitioner's competence to stand trial, in ordering petitioner to undergo a competency evaluation, and in
failing to conduct a preliminary hearing. We instruct the clerk of the court to issue a writ of mandamus
directing the justice's court to vacate its May 13, 1999, order sending petitioner to Lake's Crossing for a
competency evaluation and to forthwith conduct a preliminary hearing, consistent with this opinion, to
determine if there is adequate probable cause to bind over the petitioner to the district court. Regarding the
relief requested by petitioner, we decline to direct the justice's court to dismiss the case on the basis
of petitioner's incompetence,
........................................
court to dismiss the case on the basis of petitioner's incompetence, or to direct the district attorney to refrain
from further prosecuting petitioner.
____________
116 Nev. 527, 527 (2000) Baker v. Dist. Ct.
ROBERT P. BAKER, an Individual, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE GARY L.
REDMON, District Judge, Respondents, and RIO PROPERTIES, INC., a Nevada Corporation, Real
Party in Interest.
No. 34997
June 5, 2000 999 P.2d 1020
Original petition for writ of prohibition challenging the district court's refusal to quash service of process for
lack of jurisdiction.
Nevada hotel casino brought declaratory judgment action against California guest, seeking determination that
it was not violating Nevada or California law by its use of the term suite in its name or advertising. The district
court denied guest's motion to quash service of process for lack of jurisdiction. Guest filed petition for writ of
prohibition challenging district court's refusal to quash service. The supreme court held that: (1) district court
lacked general jurisdiction over guest on the basis of his membership in the state bar, but (2) district court had
specific jurisdiction over guest arising from his hotel stay.
Petition denied.
Nikolas L. Mastrangelo, Las Vegas, for Petitioner.
Lionel Sawyer & Collins and Dennis L. Kennedy, Las Vegas, for Real Party in Interest.
1. Prohibition.
Writ of prohibition is the appropriate remedy where a district court exceeded its jurisdiction in refusing to quash service based on
lack of personal jurisdiction.
In reviewing the district court's determination that personal jurisdiction can be properly exercised, the supreme court conducts a de
novo review in matters where the facts are not disputed.
3. Constitutional Law; Courts.
For a forum state to obtain personal jurisdiction over a nonresident defendant, the due process clause requires that the defendant
have minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and
substantial justice. U.S. Const. amend. 14.
........................................
4. Courts.
Forum state's exercise of jurisdiction over a nonresident defendant must be reasonable.
5. Courts.
There are two types of personal jurisdiction: general and specific.
6. Courts.
State court lacked general jurisdiction over nonresident hotel guest, for purposes of hotel's declaratory judgment action, on the
basis of guest's status as a member of the state bar.
7. Courts.
General jurisdiction is required in matters where a defendant is held to answer in a forum for causes of action unrelated to his
forum activities.
8. Courts.
General jurisdiction over a nonresident will lie where the nonresident's activities in the forum are substantial or continuous and
systematic.
9. Courts.
State bar membership does not necessarily implicate substantial, continuous, or systematic contact, for purposes of general
jurisdiction.
10. Courts.
Specific jurisdiction over a defendant will lie only where the cause of action arises from the defendant's purposeful contacts with
the forum state.
11. Courts.
State may exercise specific jurisdiction over a defendant in instances where: (1) the defendant purposefully establishes contact
with the forum state and affirmatively directs his conduct toward the state, and (2) the cause of action arises from such purposeful
contact with the forum.
12. Courts.
Nevada courts had specific jurisdiction over California hotel guest, for purposes of declaratory judgment action in which Nevada
hotel sought determination that it was not violating Nevada or California law by its use of the term suite in its name or advertising.
Guest's alleged injury arose from his hotel stay in Nevada, where he discovered that not all of hotel rooms were suites, Nevada had
an interest in resolving matters arising from injuries allegedly occurring while nonresidents are staying in its hotels, and hotel suite,
the alleged false marketing information, and many of the witnesses, were located in Nevada. NRS 14.065.
13. Courts.
When determining whether personal jurisdiction will lie, the supreme court must consider whether it is reasonable to require a
defendant to defend a particular suit in the state.
OPINION
Per Curiam:
SUMMARY
The underlying action arises out of Robert P. Baker's {"Baker") one-night stay at the Rio Suite
Hotel Casino {"the Rio").
........................................
(Baker) one-night stay at the Rio Suite Hotel Casino (the Rio). Because Baker believed that the Rio was
engaging in false advertising by calling its hotel rooms suites, Baker began writing letters to the Rio,
demanding that it delete the word suite from its advertising and threatening suit. Eventually, the Rio filed a
declaratory action in Nevada district court naming Baker as the defendant and seeking a declaration that it was
not violating Nevada or California law by its use of the term suite. Baker thereafter filed a motion to quash
service based on lack of personal jurisdiction. The district court denied this motion. Consequently, Baker filed a
petition for writ of prohibition with this court, alleging that the district court exceeded its jurisdiction in ruling
that the Nevada courts had jurisdiction over him. We conclude that the district court properly exercised specific
jurisdiction over Baker. We therefore deny the petition for writ of prohibition.
Baker has been a resident of Los Angeles, California, since December 1977. Baker has been practicing law
in California since 1977 and is the managing partner and sole owner of the law firm of Baker and Jacob.
In October 1996, Baker became a member of the State Bar of Nevada. Baker, however, has never
represented any party besides himself in any suit in any state or federal court in Nevada.
For several years prior to 1997, while in California, Baker saw and heard various advertisements for the
Rio, which stated that it was an all suite hotel. Baker understood the word suite to mean a set of rooms
connected by some architectural feature to be used by one person. In early March 1997, Baker's secretary
booked him a suite with a king size bed at the Rio. Baker needed to go to Las Vegas for the purpose of visiting
certain soul food restaurants and jazz clubs to sample the competition, as Baker had invested in a venture
that was considering opening such an establishment in Las Vegas. Additionally, Baker was planning a family
trip to Las Vegas and wanted to explore whether the Rio was an appropriate place for his family to stay.
Baker checked into the Rio on the evening of March 12, 1997. The next morning, Baker complained to a Rio
employee about the fact that his room was not a suite, as it allegedly did not have a separate seating area
partitioned by some sort of architectural feature. When the Rio employee insisted that the room was a suite,
Baker left without checking out or signing his credit card receipt. Later, the Rio debited Baker's credit card, but
Baker made no attempt to dispute the charge.
Upon Baker's return to Los Angeles, he began writing letters to the Rio.
........................................
to the Rio. On March 20, 1997, Baker wrote a letter to the Rio, notifying it that Baker would take appropriate
legal action if the Rio did not admit and correct its wrongdoingnamely, advertising itself as an all suite
hotel when it was not. Apparently, because the Rio did not respond to Baker's first letter, he sent a second letter
on April 9, 1997. In this letter, Baker threatened suit under California law for false advertising, demanded that
such advertising cease, and that the Rio rectify its misconduct by compensating all prior California Rio guests
with a $50.00 refund or a free night's stay.
A Rio vice president sent Baker a letter acknowledging receipt of Baker's letters on April 25, 1997.
Thereafter, Baker sent the Rio another letter, informing it that he intended to file suit under the California
Consumers Legal Remedies Act in late May and requesting a response by May 12, 1997. On May 13, 1997, the
Rio responded by letter, restating its position that all its rooms were suites according to two hospitality industry
texts and hospitality industry standards. Baker answered by letter on June 5, 1997, reaffirming his position that
the Rio was engaging in false advertising and that his room could not fairly be called a suite.
On June 6, 1997, the Rio sent yet another letter that pointed out that Baker and the Rio fundamentally
disagreed over the Rio's use of the word suite. This letter also solicited specific information concerning
settlement. Baker, in his written response three days later, made the following demands: (1) deletion of the word
suite from Rio's name and advertising; (2) compensation for prior California Rio guests in the form of $50.00
or a free night's stay; and (3) $5,000.00 in attorney fees. Baker emphasized that the aforementioned settlement
would only resolve the matter in California.
In June 1997, the same month that Baker wrote his letter concerning settlement, the Rio filed an action for
declaratory relief in the United States District Court for the District of Nevada. In order to obtain jurisdiction in
federal court, the Rio alleged that Baker had raised a claim concerning the validity of the Rio's trademark, which
was a federal question within the purview of the Lanham Act. Baker moved to dismiss the federal action on the
ground that he had never raised a claim under the Lanham Act. This motion was denied.
Baker thereafter filed a counterclaim in the federal action, alleging that the Rio was engaged in false
advertising in violation of the California Consumers Legal Remedies Act.
Pre-trial discovery ensued, and according to Baker, numerous delays occurred in federal court for the next
two years. Then, on July 7, 1999, the Rio moved to voluntarily dismiss its complaint. According to Baker, this
motion for dismissal was merely another delay tactic and "prior even to requesting the dismissal
of its own complaint,
........................................
delay tactic and prior even to requesting the dismissal of its own complaint, [the] Rio had already filed this
action to begin the precise lawsuit over again from the beginning. According to the Rio, however, it moved to
dismiss because there was a serious question regarding the federal court's subject matter jurisdiction over [the]
Rio's claims and Baker's counterclaims. The Rio alleges Baker opposed the motion to dismiss, but it was
granted without prejudice.
Thereafter, on July 8, 1999, the Rio filed a complaint for declaratory relief in state district court, seeking a
declaration that it was not violating Nevada or California law by its use of the term suite in its name or
advertising. Baker was personally served on August 9, 1999, but thereafter filed a motion to quash service,
alleging that Nevada lacked personal jurisdiction over him. After conducting a hearing on Baker's motion to
quash, the district court denied Baker's motion and ruled jurisdiction over Baker was proper because Nevada had
a substantial interest in having Nevada hotel matters resolved in Nevada and that Baker had sufficient Nevada
contacts.
Believing that the district court erred in making this ruling, Baker filed a petition for writ of prohibition with
this court, challenging the district court's refusal to quash service of process and requesting a temporary stay of
proceedings in the district court. We granted Baker's request for a temporary stay on October 21, 1999. We now
address the merits of Baker's writ petitionnamely, whether the district court properly denied Baker's motion to
quash based on its conclusion that Nevada had personal jurisdiction in the underlying dispute.
DISCUSSION
[Headnotes 1, 2]
A writ of prohibition is the appropriate remedy where a district court exceeded its jurisdiction in refusing to
quash service based on lack of personal jurisdiction. See Trump v. District Court, 109 Nev. 687, 692, 857 P.2d
740, 744 (1993). In reviewing the district court's determination that personal jurisdiction can be properly
exercised, we conduct a de novo review in matters where the facts are not disputed. See Panavision Int'l v.
Toeppen, 141 F.3d 1316, 1319-20 (9th Cir. 1998).
[Headnotes 3-5]
Nevada's long-arm statute, NRS 14.065, reaches the limits of due process set by the United States
Constitution. See Judas Priest v. District Court, 104 Nev. 424, 426, 760 P.2d 137, 138 (1988). In order for a
forum state to obtain personal jurisdiction over a nonresident defendant, the Due Process Clause of the
Fourteenth Amendment requires that the defendant have "minimum contacts" with the
forum state "such that the maintenance of the suit does not offend 'traditional notions of
fair play and substantial justice.'"
........................................
Amendment requires that the defendant have minimum contacts with the forum state such that the
maintenance of the suit does not offend traditional notions of fair play and substantial justice.' Mizner v.
Mizner, 84 Nev. 268, 270, 439 P.2d 679, 680 (1968) (citing International Shoe Co. v. Washington, 326 U.S.
310, 316 (1945)). Additionally, a forum state's exercise of jurisdiction over a defendant must be reasonable. See
Trump, 109 Nev. at 699, 857 P.2d at 748. There are two types of personal jurisdiction: general and specific. See
id. We will address each in turn.
A. General jurisdiction
[Headnote 6]
Baker first contends that Nevada courts lack general jurisdiction over him because his status as a
nonresident, nonpracticing member of the Nevada bar is insufficient to support a conclusion that Baker had
systematic and continuing contacts with Nevada. We agree that the Nevada courts lack general jurisdiction over
Baker.
[Headnotes 7, 8]
General jurisdiction is required in matters where a defendant is held to answer in a forum for causes of
action unrelated to his forum activities. See Trump, 109 Nev. at 699, 857 P.2d at 748. General jurisdiction over
a nonresident will lie where the nonresident's activities in the forum are substantial or continuous and
systematic. Id. (citations omitted). At least two jurisdictions have held that membership in the state bar, in and
of itself, does not subject an individual to general jurisdiction in the state of membership because such contact is
not substantial, continuous, or systematic. See Worthington v. Small, 46 F. Supp. 2d 1126, 1134 (D. Kan. 1999);
Crea v. Busby, 55 Cal. Rptr. 2d 513, 516 (Ct. App. 1996).
[Headnote 9]
We agree with the Worthington and Crea courts that state bar membership does not necessarily implicate
substantial, continuous, or systematic contact. Although the Rio properly notes that nonresident bar members are
regulated by our supreme court rules (SCR), we conclude that a nonresident bar member could comply with
these rules without having continuous and systematic contact with the State of Nevada.
1
In fact, a nonresident,
non practicing bar member's compliance with the SCR could consist solely of sending a
yearly check and an address update form upon relocation.
__________

1
The Rio brings four specific supreme court rules (SCR) to this court's attention: (1) SCR 98, which
requires all Nevada bar members to pay yearly fees; (2) SCR 79, which requires all Nevada bar members to keep
the bar informed of their current address; (3) SCR 99, which subjects all bar members to the exclusive
disciplinary jurisdiction of this court; and (4) SCR 203.5, which provides that this court has jurisdiction to
impose discipline of
........................................
practicing bar member's compliance with the SCR could consist solely of sending a yearly check and an address
update form upon relocation.
Accordingly, we conclude that the district courts of Nevada lack general jurisdiction over Baker on the basis
of his bar membership.
B. Specific jurisdiction
[Headnotes 10, 11]
Specific jurisdiction over a defendant will lie only where the cause of action arises from the defendant's
purposeful contacts with the forum state. See Trump, 109 Nev. at 699, 857 P.2d at 748. A state may exercise
specific jurisdiction over a defendant in instances where: (1) the defendant purposefully establishes contact with
the forum state and affirmatively directs his conduct toward the state; and (2) the cause of action arises from
such purposeful contact with the forum. See id. at 699-700, 857 P.2d at 748.
[Headnote 12]
With respect to the first requisite, also known as the purposeful availment requirement, Baker argues that he
did not avail himself of the forum of Nevada because the instant dispute did not arise from his hotel stay in
Nevada, but rather it arose from the Rio's false advertising in California. We conclude that this contention lacks
merit because the true injury to Bakerspecifically, having to stay in an allegedly standard-size hotel room
that was advertised as a suitearose from Baker's stay in Nevada on March 12, 1997. Indeed, had Baker not
stayed at the Rio, he would never have thought that the Rio's California advertisements were false. Accordingly,
Baker purposely availed himself of the forum of Nevada by staying the night at the Rio.
With respect to the second requisite, assuming that Baker purposely directed himself to the forum of Nevada,
Baker argues that his cause of action did not arise out of his contact with Nevada. Specifically, Baker argues that
merely sleeping in the Rio for one night does not establish a substantial connection with the state. We conclude
that this argument lacks merit because Baker's injuries arose directly from his hotel stay. See Firouzabadi v.
District Court, 110 Nev. 1348, 1355, 885 P.2d 616, 621 (1994) (for purposes of specific jurisdiction, claims
must have a specific and direct relationship or be intimately related to the forum). Although Baker insists that his
injury directly arose in California where he heard the Rio's false and misleading ads,
__________
its members, even for acts committed in another state. We have considered these rules and do
not agree that they give rise to continuous and systematic contact with the State of Nevada.
.......................................
where he heard the Rio's false and misleading ads, Baker's alleged injury occurred in Nevada where he
discovered that not all of the Rio's hotel rooms consisted of two rooms, and thus allegedly are not suites.
Baker further argues that even if the two requisites for specific jurisdiction are satisfied, it would be
unreasonable to subject him to jurisdiction in Nevada because Nevada has no forum interest in this matter. We
disagree.
[Headnote 13]
When determining whether personal jurisdiction will lie, this court must consider whether it is reasonable to
require a defendant to defend a particular suit here. See Trump, 109 Nev. at 701, 857 P.2d at 749. Factors
relevant to this inquiry, among others, include the forum state's interest in adjudicating the dispute and the
interstate judicial system's interest in the most efficient resolution of controversies. See id.
We conclude that it is reasonable to require Baker to litigate this matter in Nevada. First, Nevada has an
interest in resolving matters arising from injuries that occur while nonresidents are staying in its hotels. Second,
hearing this matter in Nevada would promote our long-standing policy of judicial efficiency because the hotel
suite, the alleged false marketing information, and many of the witnesses, with the exception of Baker, are
located in this state.
Accordingly, because Baker purposely directed himself to the forum of Nevada and because the exercise of
jurisdiction over Baker is reasonable, we conclude that the Nevada courts have specific jurisdiction over Baker.
CONCLUSION
We conclude that Nevada does not have general jurisdiction over Baker based solely on his bar
membership. However, we further conclude that the district court did not exceed its jurisdiction in denying
Baker's motion to quash service for lack of personal jurisdiction because the Nevada courts have specific
jurisdiction over Baker arising from his hotel stay. Accordingly, we deny Baker's petition for writ of prohibition.
____________
116 Nev. 535, 535 (2000) Nunez v. City of North Las Vegas
GEORGIA NUNEZ, Appellant, v. CITY OF NORTH LAS VEGAS, a Municipal Corporation, Respondent.
No. 28703
June 9, 2000 1 P.3d 959
Appeal from a district court order granting respondent's motion to dismiss appellant's complaint pursuant to
NRCP 12(b)(5). Eighth Judicial District Court, Clark County; James A. Brennan, Senior Judge.
Former municipal court administrator sued city for municipal court judge's alleged retaliatory discharge of
the administrator, wrongful termination, breach of covenant of good faith and fair dealing, and negligent and
intentional infliction of emotional distress. The district court granted city's motion to dismiss. Former
administrator appealed. The supreme court, Maupin, J., held that the municipal court was a branch of municipal
government rather than a state governmental entity, and the city therefore was subject to suit, overruling Pittman
v. Lower Court Counseling, 110 Nev. 359, 871 P.2d 953 (1994).
Lee Elizabeth McMahon, Las Vegas, for Appellant.
Richard C. Maurer, City Attorney, North Las Vegas, for Respondent.
1. Federal Courts.
The Eleventh Amendment protects state governments from being sued in federal court in a 1983 civil rights action. U.S. Const.
amend. 11; 42 U.S.C. 1983.
2. Federal Courts.
Local governments may be sued in federal court in a 1983 civil rights action. 42 U.S.C. 1983.
Municipal courts enjoy the inherent powers of all constitutionally created courts, and are entitled to manage internal affairs
without interference from separate governmental branches. NRS 5.010, 266.555.
4. Courts.
Although municipal courts are created by the legislature pursuant to authority vested in that body by the state constitution, those
courts are separate branches of their respective city governments and are therefore primarily city, not state, entities. NRS 5.010,
266.555.
5. Courts.
Municipal court was a branch of municipal government rather than a state governmental entity, and thus, city could be sued by
former municipal court administrator for municipal court judge's alleged retaliatory discharge of the administrator, wrongful
termination, breach of covenant of good faith and fair dealing, and negligent and intentional infliction of emotional distress. NRS
5.010, 266.555.
........................................
6. Civil Rights.
The municipal court is not an extension of the state for purposes of a 1983 civil rights suit; overruling Pittman v. Lower Court
Counseling, 110 Nev. 359, 871 P.2d 953 (1994). 42 U.S.C. 1983; NRS 5.010, 266.555.
7. Courts.
A municipal judge has the inherent power to dismiss a municipal court administrator in the exercise of his or her judicial functions
as an agent or officer of the municipality, not of the state. NRS 5.010, 266.555.
8. Civil Rights.
Municipalities and other local governmental bodies are persons, as element for a 1983 civil rights action. 42 U.S.C. 1983.
OPINION
Georgia Nunez appeals the dismissal of her complaint against respondent, City of North Las Vegas
(the City), for wrongful termination of her employment as administrator of the North Las Vegas
Municipal Court. It appears that the district court, in reliance on our decision in Pittman v. Lower Court
Counseling, 110 Nev. 359, 871 P.2d 953 (1994), determined that the City was immune from her suit. We
conclude that Pittman was wrongly decided and that the City is not immune from the action filed by Ms.
Nunez in the Nevada state court system.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
This case has been marked from its beginning by a tortured procedural history. In October 1993, North
Las Vegas Municipal Judge Gary Davis terminated Nunez from her employment as administrator of the City
of North Las Vegas Municipal Court. Nunez first commenced proceedings in the United States District Court
for the District of Nevada, claiming retaliatory discharge in violation of the First Amendment to the Federal
Constitution and 42 U.S.C. 1983, and gender and racial discrimination in violation of Title VII, 42 U.S.C.
2000 et seq. Pendant state law claims lodged in the federal case included causes of action for wrongful
discharge in violation of state public policy, breach of the implied covenant of good faith and fair dealing,
intentional infliction of emotional distress, and negligent infliction of emotional distress. It is uncontested
that the primary tortfeasor alleged to have committed these wrongs was Judge Davis. The City was
named as a defendant in the federal action along with Judge Davis.
........................................
named as a defendant in the federal action along with Judge Davis.
1

The factual basis for the federal and pendant state claims arose from allegations by Nunez that, over a
considerable period of time, Judge Davis subjected her and other minority and female employees to harassment
and illegal demands. Nunez alleges that she was ultimately terminated in retaliation for her refusal to block
certain female employees from attending a seminar (those who failed to assist Judge Davis in his campaign for
re-election), failure to obtain a raise for the judge from the city council, failure to replace stained ceiling tiles in
his judicial chambers and refusal to require clerks in the Marshall's office to work overtime.
The United States District Court dismissed several of the federal claims against Judge Davis
2
and all of the
claims against the City. The 42 U.S.C. 1983 claims were dismissed in reliance on our decision in Pittman v.
Lower Court Counseling, 110 Nev. 359, 871 P.2d 953 (1994). In its order, the United States District Court
stated:
In Pittman v. Lower Court Counseling, [citation omitted], the Nevada Supreme Court noted two previous
holdings it had made regarding 1983 actions against municipal court employees. First, the court noted
that it had previously held that neither the State of Nevada nor its officials acting in their official
capacities are persons under 42 U.S.C. 1983 and therefore neither may be sued in state court under this
statute.[Citation omitted.] Second, the court observed, [W]e have held that the municipal court system
in this state is part of the state judicial system, not the city. [Citation omitted.]
[Headnotes 1, 2]
Thus, because the municipal court was part of the state judicial system under Nevada law, the federal court
concluded that the City, under Pittman, could not be subject to liability for the defalcations of a state judicial
officer. It further dismissed the 42 U.S.C. 1983 action against Judge Davis because state officials cannot be
sued in their official capacity because a state is not a person' under section 1983 and an official capacity suit
against a state official is no different from a suit against the state itself.
3
See Will v. Michigan Dept. of State
Police, 491 U.S. 58 (1989).
__________

1
After filing a complaint with the Nevada Equal Rights Commission, Nunez received an EEOC right to sue
letter.

2
The federal claims against Judge Davis in his personal capacity were not dismissed.

3
State governments may not be sued in federal court under 42 U.S.C. 1983, pursuant to the Eleventh
Amendment to the Federal Constitution. This is in opposition to local governments, which are subject to such
suits.
........................................
The federal district court also dismissed the civil rights claims primarily because Nunez was a member of
Judge Davis' personal staff and thus fell within the personal staff exception to Title VII claims against elected
public officials. See Teneyuca v. Bexar County, 767 F.2d 148, 150 (5th Cir. 1985); Ramirez v. San Mateo
County District Attorney's Office, 639 F.2d 509 (9th Cir. 1981). Finally, the court dismissed the pendant state
claims against the City.
Nunez then commenced the action below in state district court in which she lodged claims mirroring the
previous claims for relief dismissed in federal court. However, because of the federal court ruling on the 42
U.S.C. 1983 and Title VII claims, the claims for retaliatory discharge and wrongful termination were based
upon state public policy considerations and her assertion that an implied contract of continued employment with
the City had been formed and was breached. Thus, the state action sought relief for retaliatory discharge,
wrongful termination, breach of the covenant of good faith and fair dealing, negligent infliction of emotional
distress and intentional infliction of emotional distress.
The City moved to dismiss the complaint on the basis that it was improper to name it as a defendant and that
Nunez had no viable cause of action for either intentional or negligent infliction of emotional distress. The trial
court granted the City's motion. Although the record contains no basis for the decision, we assume that the
dismissal primarily rests upon the notion that, under Pittman, municipal courts are state, not municipal entities.
Certainly, if Pittman was correctly decided, the alleged termination by Judge Davis could not, as a matter of law,
form the basis of vicarious liability against the City.
On appeal, Nunez argues that the order dismissing her complaint for wrongful termination should have been
accompanied by findings of fact and conclusions of law, and that the trial court otherwise abused its discretion in
dismissing the complaint. We now conclude that this court wrongly held in Pittman that municipal courts are
agents of the State of Nevada for the purposes of immunity from actions brought under 42 U.S.C. 1983. Thus,
our decision in Pittman clearly misled the federal district court into dismissing Nunez's 42 U.S.C. 1983 action.
Further, because Pittman implies that municipalities are not responsible for the acts of their municipal courts
because those courts are state entities, we also conclude that the state district court below was misled into
determining that the City was improperly joined in the instant lawsuit. Having decided that Pittman must be
revisited, we reverse the order below and remand this matter to the district court for reinstatement of Nunez's
complaint.
........................................
DISCUSSION
The United States Supreme Court has held that a municipality may be sued under 42 U.S.C. 1983,
4
if it
can be established that a municipal policy or custom has caused a constitutional injury. See Monell v. New
York City Department of Social Services, 436 U.S. 658, 690 (1978).
In Pittman, the plaintiff named the City of Las Vegas as a defendant in a legal suit. The plaintiff in Pittman
attempted to argue that Lower Court Counseling (LCC), which was a division of the Las Vegas Municipal
Court, was part of, and controlled by, the City of Las Vegas and not the State of Nevada. The plaintiff in Pittman
named the City of Las Vegas as a defendant, instead of the State of Nevada, in order to pursue a lawsuit under
42 U.S.C. 1983. In response, this court held:
Because LCC is a division of the City of Las Vegas Municipal Court which itself is part of the state
judicial system and therefore a part of the state, LCC is not a person for purposes of 42 U.S.C. 1983.
Accordingly, the district court did not err in holding that a 42 U.S.C. 1983 action could not be
maintained against LCC as a division of the City of Las Vegas Municipal Court.
Pittman, 110 Nev. at 364, 871 P.2d at 956.
This court supported the above determination by stating, Pittman fails to recognize that we have held that
the municipal court system in this state is part of the state judicial system, not the city. Id. at 363-64, 871 P.2d
at 956 (citing City of No. Las Vegas v. Daines, 92 Nev. 292, 550 P.2d 399 (1976)). Presumably, this court was
referring to language in Daines stating that once municipal courts are established, they exist as a coequal
branch of local government within the judicial department of this state, and a part of the constitutional judicial
system of this state. Daines, 92 Nev. at 295, 550 P.2d at 400 (citations omitted).
[Headnote 3]
We now conclude that, based on the entirety of this court's opinion in Daines, we did not intend to hold that
municipal courts are inherently part of state government and thus completely distinct from their corresponding
municipalities. The above statement in Daines was made solely for the purpose of emphasizing
that municipal courts enjoy the inherent powers of all constitutionally created courts,
__________

4
Title 42 U.S.C. 1983 (1988), provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding or redress, . . . .
........................................
ment in Daines was made solely for the purpose of emphasizing that municipal courts enjoy the inherent powers
of all constitutionally created courts, and are entitled to manage internal affairs without interference from
separate governmental branches. This was the foundation of the court's holding.
[Headnote 4]
In this respect, the court's conclusion in Pittman, that the municipal court system is part of the state judicial
system, and not the individual municipality, took the above language in Daines out of context. To conclude
otherwise would deprive municipal courts of their plenary powers and conflict with the fundamental concept that
municipalities have certain rights of self-government. Additionally, an analysis of the status of these courts
within the state system supports the conclusion that municipal courts are primarily city, not state entities.
Although municipal courts are created by the legislature pursuant to authority vested in that body by the Nevada
Constitution, these courts are separate branches of their respective city governments. See NRS 266.555; NRS
5.010; North Las Vegas City Charter, ch. 573, art. 5, 4.005 (1971).
[Headnotes 5-8]
Accordingly, we conclude that the municipal court is not an extension of the state for purposes of suit under
42 U.S.C. 1983. A municipal judge has the inherent power to dismiss a municipal court administrator in the
exercise of his or her judicial functions as an agent or officer of the municipality, not of the state. This
conclusion is consistent with the United States Supreme Court's holding in Monell and its progeny, which
provides that municipalities and other local governmental bodies are persons within the meaning of 42 U.S.C.
1983. See Monell, 436 U.S. at 690; see also Board of Comm'rs of Bryan City v. Brown, 520 U.S. 397 (1997)
(holding that a county may be held liable under 42 U.S.C. 1983 if it could be established that the county sheriff
demonstrated a conscious disregard for the public's safety through his hiring practices); Owen v. City of
Independence, Mo., 445 U.S. 622 (1980) (holding that a city could not be immune from suit under 42 U.S.C.
1983 for asserting that a chief of police was dismissed from his position in good faith). Thus, to the extent
Pittman is inconsistent with the views stated herein, it is expressly overruled.
We also conclude that the municipal courts of this state are separate branches of their respective municipal
governments. Because they are not state governmental entities, the respective municipalities may be subject to
suits such as the instant matter.
We therefore reverse the district court's order dismissing Nunez's complaint against the City of North Las
Vegas and remand this matter to the district court.
........................................
remand this matter to the district court. On remand, the district court shall allow Nunez leave to allege her
Nevada state law claims for retaliatory discharge. All of her claims must be resolved on their merits, including
possible substantive defenses available to the City.
5

Rose, C. J., Young, Shearing, Agosti and Becker, JJ., concur.
____________
116 Nev. 541, 541 (2000) Barrick Goldstrike Mine v. Peterson
BARRICK GOLDSTRIKE MINE, Appellant, v. TODD PETERSON, Respondent.
No. 33460
June 9, 2000 2 P.3d 850
Appeal from a district court order denying judicial review and affirming the ruling of an appeals officer from
the Nevada Department of Administration. First Judicial District Court, Carson City; Michael E. Fondi, Judge.
Employer sought judicial review of the decision of an appeals officer of the Department of Administration
granting workers' compensation benefits pursuant to a compensation claim filed more than ninety days after the
accident. The district court affirmed and denied judicial review. Employer appealed. The supreme court held
that: (1) as a matter of first impression, a claimant must both provide written notice of the work-related injury to
the employer within seven days of the injury and file a claim for compensation within ninety days of the
accident; (2) employer's actual notice of injury did not excuse timely filing of claim; (3) it was not necessary to
remand to the insurer as to claimant's excuse for the untimely filing of the claim; and (4) the untimely filing of
the claim was excused.
Affirmed.
McDonald Carano Wilson McCune Bergin Frankovich & Hicks and Timothy E. Rowe, Reno, for Appellant.
__________

5
The City below argued that the emotional distress claims were invalid as a matter of law. Because there is no
indication that the district court reached the merits of this argument other than on the basis that the municipal
court was a state entity, we instruct the district court on remand to allow discovery on these claims to proceed.
The merits of the emotional distress claims may be revisited thereafter either by pre-trial motion or at trial.
The Honorable Myron E. Leavitt, Justice, voluntarily recused himself from participation in the decision of this
appeal.
........................................
Easterly & Armstrong, Elko, for Respondent.
A workers' compensation claimant must both provide written notice of the work-related injury to the employer within seven days
of the injury and file a claim for compensation within ninety days of the accident. NRS 616C.015(1), 616C.020(1), 616C.025(1).
The construction of a statute is a question of law subject to de novo review.
3. Statutes.
Statutes should be given their plain meaning.
An injured employee must file a claim for compensation within ninety days of the accident, regardless of whether the injured
employee seeks medical treatment within the ninety-day period. NRS 616C.020(1)(a).
An employer's receipt of actual notice of an injury does not excuse the employee's failure to file a claim for compensation within
ninety days of the accident. NRS 616C.020(1), 616C.025(1).
Mistake or ignorance of fact excused electrician in employer's maintenance department from filing his claim for compensation
within ninety days of accident, where the electrician did not associate his leg pain with the back injury he suffered in the accident, so
that electrician sought medical attention belatedly. NRS 616C.020(1), 616C.025(1), (2)(b).
Administrative agencies may receive and weigh evidence and a reviewing court may not substitute its judgment on questions of
fact. NRS 233B.135(3).
Substantial evidence supporting the agency's decision is that quantity and quality of evidence which a reasonable person could
accept as adequate to support a conclusion.
The insurer's decision to deny a claimant's excuse for failing to timely file the claim for compensation is reviewable de novo by an
administrative officer. NRS 616C.020(1), 616C.025(1), (2).
Remand from the supreme court to the insurer was not required regarding claimant's excuse for failing to timely file his claim for
compensation, where insurer categorically stated at oral argument in the supreme court appeal that it would reject the excuse on
remand but the appeals officer had accepted the excuse before the supreme court appeal, so that remand would foster needless litigation
that would delay the payment of claimant's benefits. NRS 616C.020(1), 616C.025(1), (2).
........................................
OPINION
Per Curiam:
Respondent Todd Peterson (Peterson) failed to comply with NRS 616C.020(1) by not filing his workers'
compensation claim within ninety days of suffering a work-related injury. Appellant Barrick Goldstrike Mine
(Barrick) denied Peterson's claim due, in part, to his failure to file a timely claim, and Peterson appealed
this decision. A hearing officer and an appeals officer from the Nevada Department of Administration both
reversed Barrick's decision and granted Peterson benefits. The district court affirmed the appeals officer's
decision and denied judicial review. For the reasons discussed herein, we conclude that the appeals officer
interpreted NRS 616C.025(1) erroneously. However, we further conclude that substantial evidence in the
record supports the appeals officer's alternative finding that Peterson's failure to comply with NRS
616C.020(1) is excused under NRS 616C.025(2).
FACTS
In 1992, Peterson began working for Barrick as an electrician in the maintenance department. On
September 11, 1996, while attempting to lift a boarding ladder onto an electric shovel, Peterson felt a pop
and an immediate burning sensation in his lower back. Peterson immediately notified his supervisor of the
injury. Peterson and his supervisor then together filled out an Employee's Notice of Injury or Occupational
Disease form. Peterson finished his shift and went home. Peterson had previously scheduled the next three
days off from work and believed that his back pain would improve with time and rest.
Peterson still experienced back pain for two to three weeks, but the pain eventually subsided. Peterson
later began experiencing pain in his right leg, which he did not associate with the back injury. Because his
leg pain progressively worsened, Peterson sought medical treatment on December 31, 1996, from Dr. John
Sherwood (Dr. Sherwood). Despite treatment, Peterson continued to suffer leg pain.
In March 1997, Dr. Sherwood referred Peterson to Dr. Dennis D. Thoen (Dr. Thoen) at the Western
Neurological Center in Salt Lake City, Utah, for magnetic resonance imaging (MRI). The MRI revealed a
serious lumbar disk herniation, which his physicians believed was the cause of the leg pain. Dr. Thoen
recommended that Peterson undergo surgery. Dr. Sherwood concluded that the back injury and subsequent
leg pain resulted from the September 11, 1996, accident.
........................................
the September 11, 1996, accident. With the assistance of Dr. Sherwood, Peterson filled out a workers'
compensation claim on March 24, 1997.
On April 29, 1997, Barrick's insurance administrator denied Peterson's claim on the stated grounds that the
injury was not work-related and that Peterson did not formally file the claim for workers' compensation benefits
within ninety days of the injury, as required by NRS 616C.020(1). Peterson immediately appealed the insurance
administrator's decision.
On July 16, 1997, a hearing officer of the Nevada Department of Administration reversed the insurance
administrator's decision and ruled that a preponderance of the evidence demonstrated that Peterson's back injury
occurred as a result of his work duties. The hearing officer also ruled that [b]enefits may not be denied for
failure to give timely notice where the [e]mployer had actual notice of injury on date of occurrence. Barrick
appealed the hearing officer's ruling.
On December 16, 1997, an appeals officer of the Nevada Department of Administration affirmed the hearing
officer's decision. The appeals officer agreed that Peterson did not file an untimely claim because Barrick
received actual notice of the injury. The appeals officer concluded that it is only the failure to . . . both [file a
notice of injury and file a workers' compensation claim] that operates as a total bar to industrial benefits. The
appeals officer also observed that Peterson sought medical attention only when his pain worsened, and
subsequently filed a claim based upon medical evidence demonstrating that the injury occurred as a result of the
September 11, 1996, accident. Accordingly, the appeals officer alternatively concluded that such a situation
qualifies as an excuse for failure to file the claim.
Barrick filed a petition for judicial review of the appeals officer's ruling. On October 16, 1998, the district
court denied the petition, affirming the appeals officer's decision. Barrick appeals.
DISCUSSION
Whether the appeals officer correctly interpreted NRS 616C.025(1)
[Headnote 1]
Barrick argues that the appeals officer erred in ruling that filing either a notice of injury or a claim for
compensation satisfies NRS 616C.025(1). Instead, Barrick contends that NRS 616C.025(1) requires the filing of
both a notice of injury, pursuant to NRS 616C.015(1), and a claim for compensation, pursuant to NRS
616C.020(1). Thus, if an employee fails to file either a notice of injury or a claim for compensation, the
employee is, at least presumptively, barred from receiving benefits. We agree.
........................................
[Headnotes 2, 3]
The construction of a statute is a question of law subject to de novo review. See State, Dep't of Mtr. Vehicles
v. Lovett, 110 Nev. 473, 476, 874 P.2d 1247, 1249 (1994); see also American Int'l Vacations v. MacBride, 99
Nev. 324, 326, 661 P.2d 1301, 1302 (1983) (holding that this court may independently review the administrative
construction of a statute). Additionally, in interpreting statutes, [t]his court has long held that statutes should be
given their plain meaning. Alsenz v. Clark Co. School Dist., 109 Nev. 1062, 1065, 864 P.2d 285, 286 (1993).
Moreover, [t]his court has consistently upheld the plain meaning of the statutory scheme in workers'
compensation laws. SIIS v. Prewitt, 113 Nev. 616, 619, 939 P.2d 1053, 1055 (1997).
How we should interpret NRS 616C.025(1) is an issue of first impression in Nevada. NRS 616C.025(1)
provides:
Except as otherwise provided in subsection 2, an employee or, in the event of the death of the employee,
his dependent, is barred from recovering compensation pursuant to the provisions of chapters 616A to
616D, inclusive, of NRS if he fails to file a notice of injury pursuant to NRS 616C.015 or a claim for
compensation pursuant to NRS 616C.020.
After a careful review of NRS Chapter 616C, we conclude that the legislature established a comprehensive
statutory scheme for workers' compensation claims that begins with a two-step process. First, under NRS
616C.015(1),
1
an injured employee must provide written notice of a work-related injury to the employer within
seven days of the injury. Second, under NRS 616C.020(1),
2
the employee must file a claim for compensation
for the injury within ninety days of the accident. In accordance with NRS 616C.015(1) and NRS 616C.020(1),
NRS 616C.025(1) expressly provides that an injured employee is barred from receiving compensation if the
employee fails to file a notice of injury or fails to file a claim for compensation.
In this case, the appeals officer interpreted NRS 616C.025(1) to merely require the filing of either a
notice of injury or a claim for compensation.
__________

1
NRS 616C.015(1) provides that [a]n employee . . . shall provide written notice of an injury that arose out of
and in the course of employment to the employer of the employee as soon as practicable, but within 7 days after
the accident.

2
NRS 616C.020(1) states, in relevant part:
[A]n injured employee, or a person acting on his behalf, shall file a claim for compensation with the
insurer within 90 days after an accident if:
(a) The employee has sought medical treatment for an injury arising out of and in the course of his
employment; or
(b) The employee was off work as a result of an injury arising out of and in the course of his
employment.
........................................
to merely require the filing of either a notice of injury or a claim for compensation. Pursuant to the plain
language of NRS 616C.025(1), we conclude that an injured employee must file both a notice of injury and a
claim for compensation in order to receive benefits. Accordingly, we conclude that the appeals officer
interpreted NRS 616C.025(1) erroneously in this case.
Peterson contends that the ninety-day deadline provided for in NRS 616C.020(1) is inapplicable in this case.
Specifically, Peterson argues that the statute only appears to apply if an employee seeks medical treatment within
ninety days of the accident. See NRS 616C.020(1)(a). Here, Peterson sought treatment 111 days after he
sustained his injury at Barrick.
Although we acknowledge this apparent gap in NRS 616C.020(1), this case involves an unusual factual
scenario because most injuries will generally manifest themselves within the ninety-day period. Moreover, to
conclude that Peterson is excused from complying with NRS 616C.020(1) would inevitably lead to cases where
the statute is rendered inoperative. See Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 502, 797 P.2d
946, 949 (1990) (It is elementary that statutes . . . must be construed as a whole and not be read in a way that
would render words or phrases superfluous or make a provision nugatory.), overruled on other grounds by
Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000).
[Headnotes 4, 5]
Additionally, as noted above, the legislature set up an explicit two-step procedure in an effort to lend order
and predictability to the entire workers' compensation process. If we began crafting exceptions to this otherwise
unambiguous procedure, it is not difficult to imagine the absurd results that would inevitably flow from such
exceptions. See Welfare Div. v. Washoe Co. Welfare Dep't, 88 Nev. 635, 638, 503 P.2d 457, 459 (1972) (The
entire subject matter and the policy of the law may also be involved to aid in its interpretation, and it should
always be construed as to avoid absurd results.). Accordingly, subject to the provisions of NRS 616C.025(2),
we conclude that an injured employee must file a claim for compensation under NRS 616C.020(1) within ninety
days of the accident regardless of whether the injured employee seeks medical treatment within the ninety-day
period.
3
__________
3
Peterson also contends that if an employer receives actual notice of an injury, the failure to file either a
notice of injury or a claim for compensation may be excused. We conclude that Peterson's argument lacks merit.
We have held that if an employer receives actual notice of an injury, this may only excuse a failure to file a
timely notice of injury, not a claim for compensation. See Brocas v. Mirage Hotel & Casino, 109 Nev. 579,
584-85, 854 P.2d 862, 866-67 (1993); Industrial Commission v. Adair, 67 Nev. 259, 271-72,
........................................
Whether substantial evidence in the record supports the appeals officer's alternative ruling
[Headnote 6]
Peterson also asserts that this case falls within the purview of NRS 616C.025(2), regardless of whether the
appeals officer interpreted NRS 616C.025(1) erroneously. Thus, Peterson argues that the appeals officer's
alternative ruling is supported by substantial evidence in the record. We agree.
[Headnote 7]
It is well-settled that [a]dministrative agencies may receive and weigh evidence and a reviewing court may
not substitute its judgment on questions of fact. Southwest Gas v. Woods, 108 Nev. 11, 15, 823 P.2d 288, 290
(1992); see also NRS 233B.135(3) (The court shall not substitute its judgment for that of the agency as to the
weight of evidence on a question of fact.). Therefore, [t]he central inquiry is whether substantial evidence in
the record supports the agency decision. Brocas v. Mirage Hotel & Casino, 109 Nev. 579, 583, 854 P.2d 862,
865 (1993).
[Headnote 8]
Substantial evidence is that quantity and quality of evidence which a reasonable [person] could accept as
adequate to support a conclusion.' State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608 n.1, 729 P.2d 497,
498 n.1 (1986) (quoting Robertson Transp. Co. v. P.S.C., 159 N.W.2d 636, 638 (Wis. 1968)); see also Maxwell
v. SIIS, 109 Nev. 327, 331, 849 P.2d 267, 270-71 (1993). Accordingly, if the agency's decision lacks substantial
evidentiary support, the decision is unsustainable as being arbitrary or capricious. See NRS 233B.135(3)(f).
In the present case, the appeals officer ruled in the alternative that Peterson's circumstances qualified as an
excuse for failure to file the claim under NRS 616C.025(2). NRS 616C.025(2) operates independently of NRS
616C.025(1) and expressly provides:
An insurer may excuse the failure to file a notice of injury or a claim for compensation pursuant to the
provisions of this section if:
(a) The injury to the employee or another cause beyond his control prevented him from providing the
notice or claim;
(b) The failure was caused by the employee's or dependent's mistake or ignorance of fact or of law;
__________
217 P.2d 348, 354 (1950). We decline to extend our holding in Brocas and Industrial Commission to include
excusing the failure to file a timely claim for compensation based only on an employer's actual notice of injury.
........................................
(c) The failure was caused by the physical or mental inability of the employee or the dependent; or
(d) The failure was caused by fraud, misrepresentation or deceit.
It is undisputed that Peterson did not associate his leg pain with his back injury. Because of his mistake or
ignorance concerning the continuing nature of his back injury, Peterson sought medical attention belatedly,
which caused his failure to file a claim for compensation within ninety days of the actual injury. Indeed, Peterson
did not move to file a claim for compensation until medical evidence demonstrated that his pain was the result of
the September 11, 1996, accident. Thus, the appeals officer alternatively ruled that Peterson's situation qualified
as a mistake or ignorance of fact, thereby falling under excusable conduct pursuant to NRS 616C.025(2)(b). For
the foregoing reasons, we conclude that substantial evidence in the record clearly supports the appeals officer's
alternative finding that Peterson's failure to file a timely claim for compensation was excused under NRS
616C.025(2).
[Headnotes 9, 10]
Barrick contends that this case is controlled by our decision in Bally's Grand Hotel & Casino v. Reeves, 113
Nev. 926, 948 P.2d 1200 (1997). In Bally's, an injured employee failed to file a timely notice of injury, and her
employer's insurer denied her benefits for this reason. On appeal, the employee argued that her failure should
have been excused by the insurer pursuant to an earlier version of NRS 616C.025(2). We noted in Bally's that
the statute gives broad discretionary powers to employers as to whether they should accept or reject employees'
excuses for failing to comply. Id. at 929-30 n.4, 948 P.2d at 1203 n.4. Nonetheless, we stated that this does
not, mean, however, that the insurer's decision is inviolate. Id. Thus, the insurer's decision to deny an excuse is
reviewable de novo by an administrative officer. See id. Because it was unclear from the record whether the
insurer actually considered the employee's excuse, we remanded the matter to the insurer for a reconsideration of
the employee's excuse. See id. at 929, 948 P.2d at 1203; see also Bullock v. Pinnacle Risk Mgmt., 113 Nev.
1385, 1389, 951 P.2d 1036, 1039 (1997) (holding that Bally's requires remanding to the employer's insurer to
consider the employee's excuse under NRS 616C.025(2)).
Essentially, Barrick argues that under Bally's, remanding this case to its insurer is necessary. We disagree for
the following reason. Although our holding in Bally's suggests that we must remand this matter to the
insurer,
........................................
remand this matter to the insurer,
4
the appeals officer already concluded that Peterson's failure to file a timely
claim fell within the excuse provisions of NRS 616C.025(2). More importantly, at oral argument on this appeal,
Barrick categorically stated that it would reject Peterson's excuse upon remand. In enacting the Nevada
Industrial Insurance Act (the Act), which includes NRS Chapters 616A to 616D, the legislature expressly
declared that the Act must be interpreted and construed to ensure the quick and efficient payment of
compensation to injured and disabled employees. NRS 616A.010(1) (emphasis added). Therefore, remanding
this case to Barrick's insurer would only further delay the payment of Peterson's workers' compensation benefits
because the insurer would inevitably deny Peterson's excuse, and the appeals officer would then reverse the
insurer's decision and accept the excuse.
Accordingly, we now clarify our decision in Bally's and conclude that NRS 616C.025(2) does not require
remand to the insurer in all cases. Thus, in light of Barrick's concession and the appeals officer's alternative
ruling, we further conclude that remanding the case to Barrick's insurer risks non-compliance with the
legislature's declaration and would merely serve to foster needless and continued litigation at that level.
Consequently, we conclude that the appeals officer properly considered Peterson's excuse de novo and that
substantial evidence in the record supports the appeals officer's alternative finding that Peterson's failure to file a
timely claim for compensation is excused under NRS 616C.025(2). See Bally's, 113 Nev. at 929-30 n.4, 948
P.2d at 1203 n.4.
CONCLUSION
Although the appeals officer erroneously interpreted NRS 616C.025(1), we conclude that substantial
evidence in the record supports the appeals officer's alternative ruling that Peterson's failure to comply with
NRS 616C.020(1) is excused under NRS 616C.025(2). Accordingly, we affirm the order of the district court.
__________

4
Our opinion in Bally's noted that NRS 616C.025(2) requires that the first decision in these matters must be
made by the insurer. Bally's, 113 Nev. at 930 n.4, 948 P.2d at 1203 n.4.
____________
116 Nev. 550, 550 (2000) Freeman v. Dist. Ct.
MARK FREEMAN, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA, in and for THE COUNTY OF WASHOE, and THE HONORABLE PETER I. BREEN,
District Judge, Respondents, and WEST AMERICAN INSURANCE COMPANY and OHIO
CASUALTY INSURANCE COMPANY, Real Parties in Interest.
No. 33917
June 9, 2000 1 P.3d 963
Original petition for a writ of mandamus challenging an order of the district court granting the real parties in
interest's motion to quash service of process.
Insured brought action against two non-resident insurers based on previous litigation in another state. The
district court granted insurers' motion to quash service of process based on lack of personal jurisdiction, and
insured petitioned for writ of mandamus. The supreme court, addressing an issue of first impression, held that
insurers did not consent to the general jurisdiction of Nevada's courts when they appointed the commissioner of
insurance as an agent to receive service of legal process.
Petition denied.
Jones Vargas and Gregory A. Brower and Albert F. Pagni, Reno, for Petitioner.
Allison, MacKenzie, Hartman, Soumbeniotis & Russell and Michael A. Pintar, Carson City, for Real Parties
in Interest.
1. Corporations.
Appointment of the commissioner of insurance as an agent to receive service of legal process pursuant to statute requiring such
appointment for non-resident insurer to transact business in state, does not, by itself, subject a non-resident insurer to personal
jurisdiction in Nevada. NRS 680A.250.
2. Mandamus.
Petition for a writ of mandamus is the proper means by which to challenge an order quashing service of process.
3. Courts.
There are two types of personal jurisdiction: general and specific.
4. Courts.
General jurisdiction occurs where a defendant is held to answer in a forum for causes of action unrelated to the defendant's
forum activities. General jurisdiction over the defendant is appropriate where the defendant's forum activities are so substantial or
continuous and systematic that it may be deemed present in the forum.
5. Courts.
Specific personal jurisdiction over a defendant may be established only where the cause of action arises from the defendant's
contacts with the forum.
........................................
the forum. To subject a defendant to specific jurisdiction, supreme court must determine if the defendant purposefully established
minimum contacts so that jurisdiction would comport with fair play and substantial justice.
6. Courts.
Plaintiff bears the burden of producing some evidence in support of all facts necessary to establish personal jurisdiction.
7. Corporations.
Nevada activities of two non-resident insurers were not so substantial or continuous and systematic as to subject them to the
general jurisdiction of the district court in dispute with Nevada insured that did not arise out of their Nevada contacts, where one
insurer did not collect any premiums in state during previous year, and other insurer collected a de minimis amount.
8. Corporations.
Two non-resident insurers did not consent to the general jurisdiction of Nevada's courts when they appointed the commissioner of
insurance as an agent to receive service of legal process. NRS 680A.250.
9. Corporations.
Two non-resident insurers did not have sufficient contacts with Nevada to subject them to the personal jurisdiction of Nevada
courts in dispute with Nevada insured arising from previous litigation in another state, where one insurer did not collect any premiums
in state during previous year, and other insurer collected a de minimis amount.
OPINION
Per Curiam:
[Headnote 1]
In this petition we are asked if the appointment of the commissioner of insurance as an agent to receive
service of legal process pursuant to NRS 680A.250,
1
by itself, subjects a nonresident insurance company to
personal jurisdiction in Nevada. We hold that it does not.
__________

1
NRS 680A.250 provides that:
1. Before the commissioner may authorize it to transact insurance in this state, each insurer must
appoint the commissioner, and his successors in office, as its attorney to receive service of legal
process issued against the insurer in this state. The appointment must be made on a form as
designated and furnished by the commissioner, and must be accompanied by a copy of a resolution of
the board of directors or like governing body of the insurer, if an incorporated insurer, showing that
those officers who executed the appointment were authorized to do so on behalf of the insurer.
2. The appointment must be irrevocable, must bind the insurer and any successor in interest to the
assets or liabilities of the insurer, and must remain in effect as long as there is in force any contract of
the
........................................
FACTS
In August of 1998, Mark Freeman filed an action against West American Insurance Company (West
American) and Ohio Casualty Insurance Company (Ohio Casualty) in Washoe County, Nevada, for
malicious prosecution. Freeman has been a Nevada resident since 1994. Freeman's claim arose from previous
litigation in California between Freeman and West American. The underlying dispute did not involve Nevada in
any way.
2

Ohio Casualty is an Ohio corporation licensed to do business in Nevada since 1939. West American, a
subsidiary of Ohio Casualty, is an Indiana corporation licensed to do business in Nevada since 1975. Pursuant
to NRS 680A.250, each company has appointed the commissioner of insurance as its agent authorized to
receive service of legal process in Nevada.
After Freeman filed his Nevada action, West American and Ohio Casualty each made a special appearance
and moved to quash service of process, claiming that Nevada lacked personal jurisdiction over them. The
district court granted the motion after determining that neither general nor specific jurisdiction could be
established over West American and Ohio Casualty. This original petition for a writ of mandamus followed.
DISCUSSION
[Headnote 2]
It is well established that a petition for a writ of mandamus is the proper means by which to challenge an
order quashing service of process. Firouzabadi v. District Court, 110 Nev. 1348, 1351-52, 885 P.2d 616, 618
(1994).
__________
insurer in this state or any obligation of the insurer arising out of its transactions in this state.
3. Service of such process against a foreign or alien insurer must be made only by service thereof
upon the commissioner.
4. Service of such process against a domestic insurer may be made as provided in this section, or in
any other manner provided by Nevada Rules of Civil Procedure.
5. At the time of application for a certificate of authority the insurer shall file the appointment with
the commissioner, together with a designation of the person to whom process against it served upon the
commissioner is to be forwarded. The insurer shall provide written notice to the commissioner of any
change of such a designation by a new filing.

2
In 1995, West American sued Freeman for reimbursement of funds paid to Freeman to defend a lawsuit
against Freeman concerning a house he built in Palo Alto, California. Freeman cross-complained for breach of
contract, breach of the covenant of good faith and fair dealing and economic duress. The jury found in
Freeman's favor, and the resulting judgment was affirmed on appeal. West American Ins. v. Freeman, 44 Cal.
Rptr. 2d 555 (Ct. App. 1995).
........................................
[Headnotes 3-5]
There are two types of personal jurisdiction: general and specific. Trump v. District Court, 109 Nev. 687,
699, 857 P.2d 740, 748 (1993). General jurisdiction occurs where a defendant is held to answer in a forum for
causes of action unrelated to the defendant's forum activities. Id. General jurisdiction over the defendant is
appropriate where the defendant's forum activities are so substantial or continuous and systematic that it may
be deemed present in the forum.' Id. (quoting Budget Rent-A-Car v. District Court, 108 Nev. 483, 485, 835
P.2d 17, 19 (1992)). [S]pecific personal jurisdiction over a defendant may be established only where the cause
of action arises from the defendant's contacts with the forum. Trump, 109 Nev. at 699, 857 P.2d at 748. To
subject a defendant to specific jurisdiction, this court must determine if the defendant purposefully established
minimum contacts so that jurisdiction would comport with fair play and substantial justice.' Burger King
Corp. v. Rudzewicz, 471 U.S. 462, 476-77 (1985) (quoting International Shoe Co. v. Washington, 326 U.S. 310,
320 (1945)); see also Trump, 109 Nev. at 699-700, 857 P.2d at 748-49.
[Headnotes 6, 7]
The plaintiff bears the burden of producing some evidence in support of all facts necessary to establish
personal jurisdiction. Trump, 109 Nev. at 692-93, 857 P.2d at 744. The record indicates that West American did
not collect any premiums in Nevada in 1997 and that Ohio Casualty collected a de minimis amount in the same
year. We conclude that the insurance companies' activities in Nevada were not so substantial or continuous and
systematic as to subject them to the general jurisdiction of the district court. As previously mentioned, the
underlying dispute did not arise out of the insurance companies' contacts with Nevada. Therefore, the district
court properly determined that it lacked specific jurisdiction over the insurance companies.
[Headnote 8]
In this petition, Freeman contends that West American and Ohio Casualty consented to the general
jurisdiction of Nevada's courts when the companies appointed the commissioner of insurance as an agent to
receive service of legal process pursuant to NRS 680A.250. West American and Ohio Casualty argue that the
mere act of appointing an agent to receive service of process does not subject a non-resident corporation to
general jurisdiction. We note that Nevada has heretofore not addressed this question. Other jurisdictions, as well
as legal authorities that have considered the issue, are divided.
Freeman primarily relies on Pennsylvania Fire Insurance Co. of Philadelphia v. Gold Issue Mining and
Milling Co., 243 U.S. 93 {1917).
........................................
(1917). In Gold Issue, the defendant insurance company obtained a license to do business in Missouri. Id. at 94.
In order to obtain a license, the insurance company was required to, and did, file with the superintendent of the
insurance department a power of attorney consenting that service of process upon the superintendent should be
deemed personal service upon the company so long as it should have any liabilities outstanding in the state. Id.
The Missouri Supreme Court held that the insurance company was thus subject to the jurisdiction of Missouri
courts. Id. at 95. The United States Supreme Court affirmed, stating that the construction did not deprive the
defendant of due process of law even if it took the defendant by surprise. Id. Gold Issue has not been expressly
overruled.
3

Many courts have continued to apply the holding of Gold Issue. A thorough analysis of the issue was set
forth in Sternberg v. O'Neil, 550 A.2d 1105 (Del. 1988). The Delaware Supreme Court recognized the dispute
between the holding in Gold Issue and the minimum contacts analysis required under International Shoe.
However, the court determined that the two theories complement one another and are neither inconsistent nor
mutually exclusive. Id. at 1110. The court described two forms of consent to jurisdiction: implied and express.
Id. The court then determined that a minimum contacts analysis is applicable in the absence of any other
basis for the exercise of jurisdiction. Id. at 1111. The court took the view that a state still has power to
exercise general judicial jurisdiction over a foreign corporation which has expressly consented to the exercise of
such jurisdiction, and thus no minimum contacts analysis is necessary.
4
Id. at 1111, 1117. Thus, the court
held that the Delaware court properly exercised jurisdiction over a non-resident corporation which had appointed
an agent to receive service of process as a condition to conducting business in Delaware.
5
Id.
Many courts and legal authorities agree that the appointment of an agent to receive service of process
subjects a non-resident corporation to personal jurisdiction in that state. See Bane v. Netlink, Inc., 925 F.2d
637, 640 (3d Cir. 1991) (holding that a corporation was subject to jurisdiction in Pennsylvania because
"Pennsylvania law explicitly states that the qualification of a foreign corporation to do
business is sufficient contact to serve as the basis for the assertion of personal
jurisdiction");
__________

3
However, Gold Issue has been criticized by modern legal scholars. See Pierre Riou, General Jurisdiction
Over Foreign Corporations: All that Glitters is not Gold Issue Mining, 14 Rev. Litig. 741 (1995); Matthew
Kipp, Inferring Express Consent: The Paradox of Permitting Registration Statutes to Confer General
Jurisdiction, 9 Rev. Litig. 1 (1990).

4
The court also made an alternative ruling that the Ohio corporation had sufficient minimum contacts with
Delaware to support jurisdiction since the Ohio corporation owned a Delaware corporation whose alleged
mismanagement was part of the lawsuit. Sternberg, 550 A.2d at 1125-26.

5
The reasoning in Sternberg was thoroughly criticized in the article by Matthew Kipp, 9 Rev. Litig. at 39-42.
........................................
Pennsylvania law explicitly states that the qualification of a foreign corporation to do business is sufficient
contact to serve as the basis for the assertion of personal jurisdiction); Knowlton v. Allied Van Lines, Inc., 900
F.2d 1196, 1200 (8th Cir. 1990) (We conclude that appointment of an agent for service of process . . . gives
consent to the jurisdiction of Minnesota courts for any cause of action, whether or not arising out of activities
within the state. Such consent is a valid basis of personal jurisdiction, and resort to minimum-contacts or
due-process analysis to justify the jurisdiction is unnecessary.); Holloway v. Wright & Morrissey, Inc., 739
F.2d 695, 698 (1st Cir. 1984) (holding that a statute requiring a corporation to appoint a registered agent is not
affected by New Hampshire's long arm statute); Werner v. Wal-Mart Stores, Inc., 861 P.2d 270, 272-73 (N.M.
Ct. App. 1993) (holding that personal jurisdiction could be based on a theory of consent, and determining that
New Mexico courts could obtain personal jurisdiction over all corporations who had appointed a registered
agent in compliance with New Mexico law); Sharkey v. Washington Nat. Ins. Co., 373 N.W.2d 421, 425-26
(S.D. 1985) (holding that South Dakota courts had jurisdiction over an out-of-state insurer in regard to an
insurance contract signed by a South Dakota resident in Wyoming because the insurer had appointed the South
Dakota Director of Insurance as its registered agent in compliance with South Dakota law); Restatement
(Second) of Conflict of Laws 44 (1971).
West American and Ohio Casualty argue that the holding enunciated in Gold Issue was implicitly abandoned
by the United States Supreme Court through its decisions in International Shoe and its progeny.
At the time Gold Issue was decided in 1917, the theory which dominated the Supreme Court's thinking about
jurisdiction had been characterized as the power principle. See 1 Robert C. Casad & William B. Richman,
Jurisdiction in Civil Actions 2-2(2)(a) (3d ed. 1998). As Justice Oliver Wendell Holmes explained, the
foundation of jurisdiction is physical power. McDonald v. Mabee, 243 U.S. 90, 91 (1917). Under this theory, a
court exercised jurisdiction over a foreign corporation only if the corporation was deemed to be present in the
forum state or had consented to its jurisdiction. 1 Casad & Richman, Jurisdiction in Civil Actions
2-2(3)(c)(iii).
International Shoe marked the beginning of the shift away from the power principle of personal jurisdiction
toward principles of fundamental fairness. See 1 Casad & Richman, Jurisdiction in Civil Actions 2-2, 2-3. In
International Shoe, the United States Supreme Court dealt with whether or not Washington State could impose
a tax on a Missouri-based Delaware corporation and subject it to suit in Washington to
collect the tax.
........................................
impose a tax on a Missouri-based Delaware corporation and subject it to suit in Washington to collect the tax.
The corporation employed several salesmen in Washington. The United States Supreme Court considered
whether Washington courts could properly exercise jurisdiction over the corporation, stating:
Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto
power over the defendant's person. Hence his presence within the territorial jurisdiction of court was
prerequisite to its rendition of a judgment personally binding him. But now that the capias ad
respondendum has given way to personal service of summons or other form of notice, due process
requires only that in order to subject a defendant to a judgment in personam, if he be not present within
the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit
does not offend traditional notions of fair play and substantial justice. Milliken v. Meyer, 311 U.S. 457,
463 [1940].
International Shoe, 326 U.S. at 316 (citation omitted).
The Court reconciled its decision with earlier cases which found jurisdiction based upon presence or consent.
As for consent, the inquiry relevant to the instant case, the Court said:
True, some of the decisions holding the corporation amenable to suit have been supported by resort to the
legal fiction that it has given its consent to service and suit, consent being implied from its presence in the
state through the acts of its authorized agents. But more realistically it may be said that those authorized
acts were of such a nature as to justify the fiction.
Id. at 318 (citations omitted).
A few years after International Shoe, the Court upheld an Ohio court's exercise of jurisdiction over a
non-resident corporation after its president was served with process while conducting business in Ohio. Perkins
v. Benguet Mining Co., 342 U.S. 437, 448 (1952). The Court stated that [t]he corporate activities of a foreign
corporation which, under state statute, make it necessary for it to secure a license and to designate a statutory
agent upon whom process may be served provide a helpful but not a conclusive test. Id. at 445.
In 1977, the Supreme Court decided Shaffer v. Heitner, 433 U.S. 186 (1977). In Shaffer, the Court held that
quasi in rem jurisdiction over a defendant's property, traditionally a per se basis for jurisdiction, must be tested
under the minimum contacts standard, stating that all assertions of state-court jurisdiction must be
evaluated according to the standards set forth in International Shoe and its progeny.
........................................
diction must be evaluated according to the standards set forth in International Shoe and its progeny.
6
Id. at
212.
A few years later the Court decided Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). There, the Court
held that Florida properly obtained jurisdiction over two Michigan residents who had obtained a Burger King
franchise from a Florida-based corporation, because the Michigan residents had reached out to Florida to get a
business contract, and knew that all the decisions regarding the contract were made in Florida. Id. at 479-81. In
reaching its decision, the Court summarized jurisdictional law since International Shoe. The Court noted that
due process requires that a defendant should reasonably anticipate out-of-state litigation, i.e., it is essential in
each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and protections of its laws. Id. at 475 (quoting
Hanson v. Denckla, 357 U.S. 235, 253 (1958)). The Court stated:
Once it has been decided that a defendant purposefully established minimum contacts within the
forum State, these contacts may be considered in light of other factors to determine whether the assertion
of personal jurisdiction would comport with fair play and substantial justice. International Shoe Co. v.
Washington, 326 U.S., at 320. Thus courts in appropriate case[s] may evaluate the burden on the
defendant, the forum State's interest in adjudicating the dispute, the plaintiff's interest in obtaining
convenient and effective relief, the interstate judicial system's interest in obtaining the most efficient
resolution of controversies, and the shared interest of the several States in furthering fundamental
substantive social policies.
Burger King, 471 U.S. at 476-77 (quoting World-Wide Volkswagen Corp., 444 U.S. 286, 292 (1980)).
The United States Supreme Court in International Shoe and its progeny has shifted the focus of the
jurisdictional inquiry from a state's physical power over a defendant to fundamental fairness and has abandoned
the reasoning of Gold Issue. Other courts and legal scholars have agreed that the mere act of appointing an agent
to receive service of process, by itself, does not subject a nonresident corporation to general jurisdiction. See
Goodyear Tire & Rubber Co. v. Ruby, 540 A.2d 482, 487 (Md. 1988) (The fact
__________

6
The Supreme Court may have retreated from this position in Burnham v. Superior Court of California,
County of Marin, 495 U.S. 604 (1990), where only a plurality of four justices insisted that all jurisdictional bases
must pass the International Shoe test. See 1 Casad & Richman, Jurisdiction in Civil Actions 2-3[1][b].
........................................
that Goodyear has appointed a resident agent in this State would not alone be sufficient to subject it to suit
here.); In re Mid-Atlantic Toyota Antitrust Litigation, 525 F. Supp. 1265, 1277-78 (D. Md. 1981), aff'd, 704
F.2d 125 (4th Cir. 1983) (holding that West Virginia had no jurisdiction over a non-resident corporation that had
a registered agent in West Virginia pursuant to state law, absent minimum contacts under International Shoe);
Pierre Riou, General Jurisdiction Over Foreign Corporations: All that Glitters is not Gold Issue Mining, 14
Rev. Litig. 741 (1995); Matthew Kipp, Inferring Express Consent: The Paradox of Permitting Registration
Statutes to Confer General Jurisdiction, 9 Rev. Litig. 1 (1990).
[Headnote 9]
Therefore, we conclude that the appointment of an agent to receive service of legal process pursuant to NRS
680A.250 does not in itself subject a non-resident insurance company to the personal jurisdiction of Nevada
courts. We further conclude that the district court properly determined that West American and Ohio Casualty
did not have sufficient contacts with Nevada to subject them to the personal jurisdiction of Nevada courts.
Accordingly, we deny Freeman's petition for a writ of mandamus.
____________
116 Nev. 558, 558 (2000) Hart v. State
RALPH LAURENCE HART, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29857
June 14, 2000 1 P.3d 969
Proper person appeal from a district court order denying appellant's motion to withdraw a guilty plea brought
subsequent to entry of the judgment of conviction. Eighth Judicial District Court, Clark County; Don P. Chairez,
Judge.
Defendant moved to withdraw guilty plea to murder charge over six years after entry of judgment of
conviction. The district court considered motion to be a habeas corpus petition and denied it as untimely.
Defendant appealed. After issuing show cause order, the supreme court held that: (1) motion to withdraw guilty
plea, when brought after sentencing, is incident to proceedings in trial court and is thus not subject to statutory
time limitations for habeas corpus petitions; (2) such a motion is subject to equitable doctrine of laches; (3)
laches precluded consideration of defendant's motion; and (4) to ensure compliance with the relevant procedural
requirements, defendants challenging a conviction entered upon a guilty plea should clearly identify the nature of
the relief sought, abrogating Pangallo v. State, 112 Nev. 1533, 930 P.2d 100 {1996);
........................................
116 Nev. 558, 559 (2000) Hart v. State
abrogating Pangallo v. State, 112 Nev. 1533, 930 P.2d 100 (1996); Warden v. Peters, 83 Nev. 298, 429 P.2d
549 (1967).
Affirmed.
Ralph Laurence Hart, Carson City, in Proper Person.
Respondent.
1. Criminal Law.
District court order denying a motion to withdraw a guilty plea brought prior to entry of the judgment of conviction is reviewable,
on direct appeal, as an intermediate order of the proceedings. NRS 176.165.
2. Criminal Law.
Motion to withdraw a plea is incident to proceedings in trial court and is therefore not subject to statutory time limitations
applicable to petitions for writ of habeas corpus. NRS 34.724(2)(a), 34.726(1), 176.165.
3. Criminal Law.
Whether an injustice resulting from conviction entered upon a guilty plea is manifest, so as to permit a motion to withdraw plea to
be considered after imposition of sentence, will depend upon a variety of factors, including whether the state would suffer prejudice if
the defendant is permitted to withdraw his or her plea. NRS 176.165.
4. Criminal Law.
Consideration of the equitable doctrine of laches is necessary in determining whether a defendant has shown manifest injustice
that would permit withdrawal of a guilty plea after sentencing. NRS 176.165.
5. Criminal Law.
Application of the doctrine of laches to an individual case in which a defendant seeks to withdraw guilty plea after sentencing may
require consideration of several factors, including: (1) whether there was an inexcusable delay in seeking relief, (2) whether an implied
waiver has arisen from the defendant's knowing acquiescence in existing conditions, and (3) whether circumstances exist that prejudice
the state. NRS 176.165.
6. Criminal Law.
Where a defendant previously has sought relief from conviction entered upon guilty plea, failure to identify all grounds for relief in
the first instance should weigh against consideration of a successive motion seeking to withdraw plea. NRS 176.165.
7. Criminal Law.
While similar concerns underlie procedural default rules applicable to post-conviction relief proceedings and the equitable doctrine
of laches as applied to post-sentence motions to withdraw guilty pleas, analysis as to timeliness of each type of proceeding is not
identical. Timing of a post-conviction petition is of little importance until one year has lapsed since entry of judgment of conviction or
issuance of the remittitur of a timely direct appeal, whereas significant delay of even less than one year may bear on consideration of
post-sentence motion to withdraw a plea. NRS 34.726(1), 176.165.
8. Criminal Law; Habeas Corpus.
To ensure compliance with relevant procedural requirements, defendants challenging a conviction entered upon a guilty plea
should clearly identify the nature of the relief sought as a motion to withdraw plea or a post-conviction petition for writ of
habeas corpus,
........................................
116 Nev. 558, 560 (2000) Hart v. State
a post-conviction petition for writ of habeas corpus, as the procedural label will be determinative; abrogating Pangallo v. State, 112
Nev. 1533, 930 P.2d 100 (1996); Warden v. Peters, 83 Nev. 298, 429 P.2d 549 (1967). NRS 34.726(1), 176.165.
9. Criminal Law.
Only issues relating to validity of plea are pertinent to a motion to withdraw plea. NRS 176.165.
10. Criminal Law.
Doctrine of laches precluded consideration of motion to withdraw guilty plea to murder charge, where defendant delayed for more
than six years after sentencing and entry of judgment of conviction before filing the motion at issue, defendant provided no reasonable
explanation for delay despite being afforded an opportunity to do so, and state specifically asserted that it would suffer prejudice if
forced to proceed to trial. NRS 176.165.
OPINION
Per Curiam:
This is a proper person appeal from a district court order denying a motion to withdraw a guilty plea
brought subsequent to entry of the judgment of conviction. We hold that the district court erred in
considering the motion as a post-conviction petition for a writ of habeas corpus and in concluding that it was
untimely, pursuant to NRS 34.726(1). However, we further hold that the equitable doctrine of laches applies
to motions to withdraw a guilty plea that are brought after sentencing. Applying laches to the instant case, we
hold that the district court reached the proper result. Accordingly, we affirm.
FACTS
On July 13, 1990, the district court convicted appellant Ralph Laurence Hart, pursuant to a guilty plea, of
second degree murder. The court sentenced Hart to serve a term of life imprisonment with the possibility of
parole. Hart did not file a timely direct appeal.
On September 13, 1996, Hart filed a proper person motion to withdraw his guilty plea in the district court.
The State opposed Hart's motion, arguing that it should be treated as a post-conviction petition for a writ of
habeas corpus and that it was barred pursuant to the applicable procedural default rules. Specifically, the
State asserted that Hart's motion was untimely, pursuant to NRS 34.726(1), and barred by laches, pursuant
to NRS 34.800(2). Hart responded that a motion to withdraw a guilty plea was not subject to time restrictions.
The district court ultimately considered Hart's motion as a habeas corpus petition and denied it as
untimely pursuant to NRS 34.726{1).
........................................
116 Nev. 558, 561 (2000) Hart v. State
and denied it as untimely pursuant to NRS 34.726(1). This appeal followed.
On February 4, 1999, this court entered an order directing the State to show cause why this matter should not
be remanded to the district court for consideration of the merits of Hart's motion. This court also specifically
requested the State to address the issue of whether the one-year filing deadline in NRS 34.726(1) applies to
motions to withdraw pleas that are brought subsequent to entry of the judgment of conviction.
In its response to our order, the State reverses its earlier position and concedes that NRS 34.726(1) does not
apply to Hart's motion; however, the State argues that the equitable doctrine of laches should apply. The State
asserts that [t]he legislature could enact a time limit on motions to withdraw guilty plea[s] but in the absence of
such legislation this Court should recognize the doctrine of laches to preclude stale motions such as Hart's
motion. We find the State's reasoning persuasive.
DISCUSSION
Viability of motion to withdraw a plea
The statutory provisions governing the motion to withdraw a guilty plea are codified in NRS 176.165. NRS
176.165 contemplates that a defendant may file a motion to withdraw a plea both before and after imposition of
the sentence:
Except as otherwise provided in this section, a motion to withdraw a plea of guilty, guilty but mentally ill
or nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended.
To correct manifest injustice, the court after sentence may set aside the judgment of conviction and
permit the defendant to withdraw his plea.
Pursuant to the plain language of the statute, the district court may grant a motion to withdraw a plea even
after sentencing or entry of the judgment of conviction [t]o correct manifest injustice.
1
[Headnote 1]
Consistent with this statutory mandate, the motion to withdraw a plea has become established in our
jurisprudence. In Hargrove v. State, 100 Nev. 49S, 501-02, 6S6 P.2d 222, 224-25 {19S4),
__________
1
The quoted language of NRS 176.165 is modeled after a former provision in a Federal Rule of Criminal
Procedure that has since been amended. See State v. District Court, 85 Nev. 381, 384-85, 455 P.2d 923, 925-26
(1969); Fed. R. Crim. P. 32(d) (1982). In 1983, the federal rule was amended to provide that a plea could be set
aside only on direct appeal or by a habeas motion pursuant to 28 U.S.C. 2255. However, prior to the
amendment, federal courts recognized the viability of the motion to withdraw a plea when the motion was made
subsequent to entry of the judgment of conviction. See discussion United States v. Baker, 790 F.2d 1437, 1438
(9th Cir. 1986).
........................................
116 Nev. 558, 562 (2000) Hart v. State
v. State, 100 Nev. 498, 501-02, 686 P.2d 222, 224-25 (1984), this court explicitly recognized the right to appeal
from an order denying such a motion when the motion is brought subsequent to entry of the judgment of
conviction.
2
In subsequent decisions, this court has consistently considered such appeals. See, e.g., Barajas v.
State, 115 Nev. 440, 991 P.2d 474 (1999). Further, this court has indicated that the motion to withdraw a plea
exists independently from provisions governing post-conviction relief. See Bryant v. State, 102 Nev. 268, 272,
721 P.2d 364, 368 (1986) ([A] defendant must raise a challenge to the validity of his or her guilty plea in the
district court in the first instance, either by bringing a motion to withdraw the guilty plea, or by initiating a
post-conviction proceeding under NRS 34.360 or NRS 177.315.).
3

Nevertheless, this court has yet to specifically address whether the provisions of NRS chapter 34, governing
the post-conviction petition for a writ of habeas corpus, have subsumed the motion to withdraw a plea in cases
where a judgment of conviction has been entered. NRS 34.724(2) provides, in pertinent part, that the
post-conviction petition for a writ of habeas corpus:
(a) Is not a substitute for and does not affect any remedies which are incident to the proceedings in the
trial court or the remedy of direct review of the sentence or conviction.
(b) Comprehends and takes the place of all other common law, statutory or other remedies which have
been available for challenging the validity of the conviction or sentence, and must be used exclusively in
place of them.
Consistent with these provisions, the statutory motion to withdraw a plea is an available remedy for defendants
challenging a plea after entry of the judgment of conviction only if the motion is incident to the proceedings in
the trial court.
[Headnote 2]
Today we explicitly recognize that the motion to withdraw a plea is incident to the proceedings in the trial
court.
In so holding, we clarify references in prior cases that suggest that there are only two motions that are
incident to the trial court proceedings, a motion to modify a sentence based on very narrow due process
grounds,
__________

2
A district court order denying a motion to withdraw a guilty plea brought prior to entry of the judgment of
conviction is reviewable, on direct appeal, as an intermediate order of the proceedings. Hargrove, 100 Nev. at
502 n.3, 686 P.2d at 225 n.3.

3
At the time Bryant was decided, a dual system existed whereby a defendant could generally file a petition for
post-conviction relief, pursuant to NRS 177.315, and then a petition for a writ of habeas corpus. NRS 177.315
and related provisions were repealed, effective January 1, 1993. 1991 Nev. Stat., ch. 44, 31-33, at 92.
........................................
116 Nev. 558, 563 (2000) Hart v. State
row due process grounds, and a motion to correct a facially illegal sentence. See Edwards v. State, 112 Nev.
704, 707, 918 P.2d 321, 323-24 (1996); see also Pangallo v. State, 112 Nev. 1533, 1535 n.2, 930 P.2d 100, 102
n.2 (1996).
4

However, imposition of some limitation on the motion is appropriate. This court employed similar
considerations to restrict the post-conviction petition for a writ of habeas corpus prior to the enactment of
specific statutory time limitations on the petition. See Groesbeck v. Warden, 100 Nev. 259, 679 P.2d 1268
(1984). Indeed, [t]he necessity for a workable [criminal justice] system dictates that there must exist a time
when a criminal conviction is final. Id. at 261, 679 P.2d at 1269. Moreover, the interest in finality of criminal
judgments served by limiting collateral attack on the judgments has special force with respect to convictions
based on guilty pleas. United States v. Timmreck, 441 U.S. 780, 784 (1979); see also Custis v. United States,
511 U.S. 485, 497 (1994).
[Headnotes 3, 4]
Our decision that some limitation should be placed on the motion to withdraw a plea is also grounded in the
language of NRS 176.165. As previously discussed, the statute provides that the district court may permit a
defendant to withdraw a plea, after sentencing, only to correct manifest injustice. Whether an injustice is
manifest will depend upon a variety of factors, including whether the State would suffer prejudice if the
defendant is permitted to withdraw his or her plea. Accordingly, we hold that consideration of the equitable
doctrine of laches is necessary in determining whether a defendant has shown manifest injustice that would
permit withdrawal of a plea after sentencing.
[Headnotes 5, 6]
Application of the doctrine to an individual case may require consideration of several factors, including: (1)
whether there was an inexcusable delay in seeking relief; (2) whether an implied waiver has arisen from the
defendant's knowing acquiescence in existing conditions; and (3) whether circumstances exist that prejudice
the State.
__________

4
We also recognize that a motion for a new trial, pursuant to NRS 176.515, is incident to the trial court
proceedings. NRS 176.515 specifically provides that a motion for a new trial may be made within seven days
after a verdict or finding of guilt or in such time as the court fixes within the seven day period. If based on newly
discovered evidence, the motion may be made within two years after the verdict or finding of guilt. Although not
mentioned in Edwards or Pangallo as incident to the proceedings in the trial court, the statutory provision for
the motion for a new trial, like the provision for the motion to withdraw a plea, is unambiguous. We therefore
conclude that the legislature did not intend to abolish this remedy in favor of the statutory habeas corpus remedy.
........................................
116 Nev. 558, 564 (2000) Hart v. State
udice the State. See Buckholt v. District Court, 94 Nev. 631, 633, 584 P.2d 672, 673-74 (1978). Additionally,
where a defendant previously has sought relief from the judgment, the defendant's failure to identify all grounds
for relief in the first instance should weigh against consideration of the successive motion.
[Headnote 7]
We recognize that similar concerns underlie the procedural default rules of NRS chapter 34. Generally, a
defendant must show cause and prejudice for filing an untimely or a successive petition. See NRS 34.726(1);
NRS 34.810. However, the analysis is not identical. For instance, the timing of a post-conviction petition
pursuant to NRS chapter 34 is of little importance until one year has lapsed since entry of the judgment of
conviction or the issuance of the remittitur of a timely direct appeal. In contrast, a significant delay of even less
than one year may bear on consideration of a post-sentence motion to withdraw a plea.
[Headnote 8]
To ensure compliance with the relevant procedural requirements, defendants should clearly identify the
nature of the relief sought as the procedural label will be determinative. In this limited context, we depart from
prior case law suggesting that the procedural label' attached to a motion is of little importance.' See
Pangallo, 112 Nev. at 1535, 930 P.2d at 102 (quoting Warden v. Peters, 83 Nev. 298, 301, 429 P.2d 549, 551
(1967)).
[Headnote 9]
Further, we caution that the motion to withdraw a plea is limited in scope. Only issues relating to the validity
of the plea are pertinent to this motion. Challenges to the validity of a defendant's sentence, to the computation
of time served toward the sentence, or to a conviction entered pursuant to a verdict are not appropriate to the
motion to withdraw a plea. See NRS 176.165.
Resolution of the instant case
[Headnote 10]
Having concluded that the equitable doctrine of laches applies to consideration of the post-sentence motion
to withdraw a plea, we turn to the case at bar. Hart delayed for more than six years after sentencing and entry
of the judgment of conviction before filing the motion at issue. Hart provided no reasonable explanation for his
delay, despite being afforded an opportunity to do so. Moreover, the State specifically asserted that it would
suffer prejudice if forced to proceed to trial on a murder that occurred in 1989. Accordingly, and after further
review of Hart's motion, we conclude that laches precludes consideration of the motion on the
merits.
........................................
116 Nev. 558, 565 (2000) Hart v. State
conclude that laches precludes consideration of the motion on the merits.
5

CONCLUSION
Having concluded that laches precludes consideration of Hart's motion, we affirm the district court order
denying the motion.
____________
116 Nev. 565, 565 (2000) Sengel v. IGT
CENGIZ SENGEL, Appellant, v. IGT, and THE SILVER LEGACYRENO, Respondents.
No. 32833
June 14, 2000 2 P.3d 258
Appeal from a district court order affirming the Nevada Gaming Board's determination that appellant did not
win a valid progressive jackpot when a slot machine's internal malfunction caused three jackpot symbols to
appear unevenly across the pay line. Second Judicial District Court, Washoe County; Peter I. Breen, Judge.
Gambler petitioned for judicial review of decision of Gaming Control Board that he did not have valid win
when internal malfunction suspended progressive slot machine game, stopping reels with three jackpot symbols
appearing in uneven line across pay line. The district court dismissed petition and affirmed Board. Gambler
appealed. The supreme court, Leavitt, J., held that Board's decision was not unsupported by any evidence and
was not arbitrary or capricious or otherwise contrary to law.
Affirmed.
[Rehearing denied September 22, 2000]
White Law Chartered, Reno, for Appellant.
__________

5
We recognize that, among other claims, Hart alleged that he was not informed that he was ineligible for
probation. Prior case law suggests that failure to inform a defendant of probation ineligibility may constitute a
manifest injustice permitting post-sentence withdrawal of a plea pursuant to NRS 176.165. See Aswegan v.
State, 101 Nev. 760, 761, 710 P.2d 83, 83 (1985); Meyer v. State, 95 Nev. 885, 888, 603 P.2d 1066, 1067
(1979). We need not reconsider these decisions at this time because the instant case is readily distinguishable.
First, there could be no reasonable expectation that murder was a probationable offense. Second, as discussed
above, a determination of manifest injustice is an individual determination that requires consideration of the
equitable doctrine of laches. Given our conclusion that laches weighs against consideration of Hart's motion on
the merits, there can be no manifest injustice.
........................................
116 Nev. 565, 566 (2000) Sengel v. IGT
Lionel Sawyer & Collins and Dan R. Reaser, Reno, for Respondents.
1. Gaming.
Any evidence standard applied to judicial review of decision of Gaming Control Board that gambler did not have valid win
when internal malfunction suspended progressive slot machine game, stopping reels with three jackpot symbols appearing in uneven
line across pay line. NRS 463.3666(3)(d).
Correct decision of district court could be affirmed, even though based on the wrong standard.
3. Gaming.
Reviewing court should affirm a decision of the Gaming Control Board which is supported by any evidence whatsoever, even if
that evidence is less than that which a reasonable mind might accept as adequate to support a conclusion. NRS 463.3666(3)(d).
4. Gaming.
Evidence that receipt of internal error code caused progressive slot machine to malfunction, suspending progressive slot machine
game and stopping reels with three jackpot symbols appearing in uneven line across pay line, that machine was designed to produce
jackpots via random number generator rather than with the sudden stoppage of reels caused by an error code, that jackpot light and
sirens did not go off, that game was not designed to produce a final play alignment of the reels until after error code was cleared, and
that when the game was completed the result was a non-winning alignment, supported determination that gambler did not have valid
win. NRS 463.3666.
5. Gaming.
Even alignment of the symbols on the pay table of progressive slot machine was an expressly stated term of wagering contract,
where even alignment appeared on all groups of symbols on the face of the machine in the pay table. NRS 463.3666.
6. Gaming.
Casino was not estopped from claiming that valid jackpot had to be result of random number generator by virtue of its conduct in
presenting slot machine to public as a traditional reel-type machine that arguably made payouts dependent only on the position of the
reels and not dependent on a hidden random number generator inside the machine.
7. Gaming.
When he played progressive slot machine, gambler was chargeable with constructive knowledge of state gaming regulation
requiring that game result be determined by random selection process, and that any result or apparent result caused by any other means,
such as machine malfunction, would be invalid. NRS 463.3666(3)(d).
8. Gaming.
Uneven alignment of the symbols on reels of progressive slot machine could not constitute a jackpot, even if that alignment had
not been caused by a malfunction when machine received internal error code, where it was apparent from pay table on slot machine
that even alignment was required. NRS 463.3666.
9. Gaming.
Statement on the face of progressive slot machine, that malfunction voids all pays and plays, included type of malfunction
occurring when internal malfunction caused progressive slot machine to receive error code,
........................................
116 Nev. 565, 567 (2000) Sengel v. IGT
code, suspending progressive slot machine game and stopping reels with three jackpot symbols appearing in uneven line across pay
line. NRS 463.3666.
10. Gaming.
In determining whether uneven alignment of winning symbols, occurring when internal error code stopped reels on progressive slot
machine, constituted valid win within meaning of statement on face of machine that on payline with two quarters in wins
progressive, Gaming Control Board did not act arbitrarily or capriciously in discounting testimony of former slot manager who had
been retired for twenty years that the malfunction alignment was a winning alignment because all the symbols were cut somewhere by
the pay line and in giving more weight to the picture on the pay table on machine showing an even alignment of jackpot symbols. NRS
463.3666.
OPINION
While appellant was playing a slot machine, an internal malfunction suspended the game, abruptly
stopping the reels. The reels stopped with three jackpot symbols appearing in an uneven line across the
pay line. The internal error was cleared, causing the game to reset, and a non-winning combination
appeared on the reels after play resumed. The Nevada Gaming Control Board agent dispatched to the
scene conducted an investigation and concluded that appellant did not have a valid win because of the
malfunction and the uneven alignment of the jackpot symbols. Appellant petitioned the Nevada Gaming
Control Board for reconsideration and the Board affirmed the agent's decision. Appellant petitioned the
district court for judicial review and the district court dismissed the petition, affirming the Board's
decision.
We affirm the district court's judgment upholding the Board's decision, because the decision was
supported by adequate evidence and was not arbitrary or capricious or otherwise contrary to law.
FACTS
On September 21, 1996, appellant Cengiz Sengel was playing an IGT Quartermania Triple Diamond slot
machine at the Silver Legacy Casino in Reno, Nevada. The IGT slot machine was part of a statewide,
progressive jackpot system of inter-linked slot machines. Sengel placed two quarters, the required number to
play for the progressive jackpot, into the machine and initiated a play. The progressive jackpot amount at the
time of the play was approximately $1,797,000, to be awarded for an alignment of three Quartermania
symbols across the sole pay line.
........................................
116 Nev. 565, 568 (2000) Sengel v. IGT
The slot machine malfunctioned when the microswitch on the cash door of the bill validator reported to the
machine's internal monitoring system that the cash door was open. This malfunction caused the slot machine to
immediately suspend play: (1) the reels abruptly stopped spinning with three Quartermania jackpot symbols
appearing in an uneven line across the pay line; (2) a tilt code appeared in the winner paid window; (3) the
light on top of the machine flashed a maintenance signal; (4) the progressive jackpot amount did not stop; (5) no
sirens or music came from the slot machine; and (6) no jackpot win registered on the interlinked computer
system.
Sengel claimed a jackpot win, but the casino's slot shift manager concluded that there was not a valid win
because of the apparent malfunction and the misalignment of the symbols. Sengel disagreed with the shift
manager, who immediately contacted the Nevada Gaming Control Board (hereafter Board) and the slot
machine manufacturer, IGT. Board agent Robert Johnson arrived at the Silver Legacy and conducted a thorough
investigation of the dispute.
The tilt error code was cleared by a casino employee, through a manual adjustment of the microswitch on the
cash door, and the game was reset. As soon as the game reset, play resumed and a non-winning combination,
three blanks, appeared on the slot machine. The Board agent performed several tests on the machine and verified
that Sengel did not have a valid jackpot. The agent concluded his investigation and sent a letter to Sengel, stating
that there was not a valid win because the game had been suspended due to a malfunction and when the game
was completed the result was a non-winning alignment.
Sengel filed a petition for reconsideration with the Board. A two-day hearing was held before a Board
hearing examiner, who concluded that Sengel had not demonstrated by a preponderance of evidence that the
Board agent's decision should be modified or reversed and recommended that the Board affirm the agent's
decision. The Board subsequently accepted that recommendation and affirmed the denial of the jackpot.
Sengel filed a petition for judicial review with the district court. After a hearing, the district court dismissed
the petition and affirmed the Board. This appeal followed.
DISCUSSION
The Nevada Gaming Control Board has exclusive jurisdiction to resolve a disputed claim, such as Sengel's,
by a patron of a gaming licensee for payment of a gambling debt that is not evidenced by a credit instrument.
NRS 463.361(2)(a).
1
No other remedy exists to enforce a gaming debt not evidenced by a credit
instrument.
__________

1
NRS 463.361 provides, as follows:
1. Except as otherwise provided in NRS 463.361 to 463.366, inclu-
........................................
116 Nev. 565, 569 (2000) Sengel v. IGT
exists to enforce a gaming debt not evidenced by a credit instrument. NRS 463.361(1). Once the Board resolves
such a gaming dispute, any person aggrieved by the Board's decision may obtain judicial review of the Board's
decision, subject to the following limitations on judicial review:
The reviewing court may affirm the decision and order of the board or the hearing examiner, or it may
remand the case for further proceedings or reverse the decision if the substantial rights of the petitioner
have been prejudiced because the decision is:
(a) In violation of constitutional provisions;
(b) In excess of the statutory authority or jurisdiction of the board or the hearing examiner;
(c) Made upon unlawful procedure;
(d) Unsupported by any evidence; or
(e) Arbitrary or capricious or otherwise not in accordance with law.
NRS 463.3666(3).
I. Decision supported by any evidence
Sengel implicitly argues that reversal of the Board is justified under NRS 463.3666(3)(d) because the
Board's decision is not supported by any evidence. Sengel states that there are no disputed facts, yet
consistently recasts the factual findings of the Board throughout his argument. Therefore, we will address the
issue as though raised explicitly.
[Headnotes 1, 2]
The district court exhibited some confusion as to whether the any evidence or the substantial evidence
standard applied. The district court stated that because there was overwhelming evidence supporting the
Board's decision, there was enough evidence to affirm the Board under either standard. After reviewing the
record, we agree that the Board's decision was supported by both substantial evidence and any evidence,
although the district court should have conducted its review under the any evidence standard.
__________
sive, gaming debts that are not evidenced by a credit instrument are void and unenforceable and do not
give rise to any administrative or civil cause of action.
2. A claim by a patron of a licensee for payment of a gaming debt that is not evidenced by a credit
instrument may be resolved in accordance with NRS 463.362 to 463.366, inclusive:
(a) By the board; or
(b) If the claim is for less than $500, by a hearing examiner designated by the board.
NRS 463.0171 defines a licensee as any person to whom a valid gaming license, manufacturer's or
distributor's license . . . has been issued. Respondents meet this definition.
........................................
116 Nev. 565, 570 (2000) Sengel v. IGT
evidence standard. NRS 463.3666(3)(d). Because the district court arrived at the correct decision, even though
based on the wrong standard, we affirm that decision. See Hotel Riviera, Inc. v. Torres, 97 Nev. 399, 403, 632
P.2d 1155, 1158 (1981) (holding that a correct decision of a district court will be affirmed, even if based on the
wrong reason).
[Headnote 3]
In order to give clear direction to the lower courts and prevent the application of the wrong standard in the
future, primarily in cases with less than substantial evidence in which using the wrong standard could make a
difference, we take this opportunity to clarify that the any evidence standard applies. NRS 463.3666(3)(d) uses
the word any instead of substantial, indicating that a reviewing court should affirm a decision of the Board
which is supported by any evidence whatsoever, even if that evidence is less than that which a reasonable
mind might accept as adequate to support a conclusion. ' City of Las Vegas v. Laughlin, 111 Nev. 557, 558,
893 P.2d 383, 384 (1995) (defining the substantial evidence standard) (quoting State, Emp. Security v. Hilton
Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986) (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971))). This comports with the great deference we afford a decision of the Board on appeal. See Redmer v.
Barbary Coast Hotel & Casino, 110 Nev. 374, 378, 872 P.2d 341, 344 (1994).
With this standard in mind, we examine Sengel's contentions.
[Headnote 4]
Sengel contends that the slot machine did not malfunction because it acted exactly as it was designed to
operate. By stopping abruptly upon receiving an error code, the machine produced a result on the reels in a
manner in which it was designed. Because, argues Sengel, the reels were stopped in a manner in which they were
designed to be stopped, the result was not a malfunction.
However, the Board heard evidence that the slot machine was only designed to produce jackpots via the
random number generator. It was not designed to produce a final game result with the sudden stoppage of the
reels caused by an error code. Any result shown on the reels during suspension of the game was designed to be
just that: a suspended result. Upon a reel shutdown caused by a tilt code, the machine was not designed to
recognize the suspended result as a legitimate outcome, be it an apparent winning or non-winning alignment.
Respondents' witnesses testified that, while the game did do what it was designed to do, which is to immediately
shut down upon detection of an error code, the game was not designed to produce a final play alignment of the
reels until after the error code was cleared. Sengel's own expert witness admitted on cross-examination that a
door tilt code would have to be considered a malfunction.
........................................
116 Nev. 565, 571 (2000) Sengel v. IGT
have to be considered a malfunction. Further, the Board took evidence from Board agent Robert Johnson that the
machine itself showed a malfunction code and in other ways visually appeared to not have a valid jackpot. The
abrupt stop of the reels, the uneven alignment of the jackpot symbols, the tilt code in the winner paid window,
the maintenance light on top of the machine and the absence of jackpot lights, the continued running of the
progressive jackpot amount, the lack of sirens or music coming from the slot machine, and the fact that no
jackpot win registered on the inter-linked computer system all support the Board's finding that a malfunction
occurred. Accordingly, Sengel's argument is without merit, because there is evidence to support a finding that a
malfunction occurred.
Sengel challenges the Board's finding that the malfunction was part of the slot machine, not part of associated
equipment. He argues that the slot machine itself is a gaming device, as defined in NRS 463.0155, but that the
bill validator is merely associated equipment, as defined in NRS 463.0136. Sengel argues that some
Quartermania slot machines have bill validators and some do not, so the bill validator is not an essential part of
the actual gaming device. The Board, however, with its expertise in gaming matters, found that the bill validator,
once placed inside the slot machine and connected with the machine's unified security system and part of the
computerized game flow process, is part of the slot machine and not merely associated equipment. Because
there is evidence supporting this finding, we again defer to the Board.
II. Decision not arbitrary, capricious or contrary to law
An order of the Nevada Gaming Control Board will not be disturbed unless it is arbitrary, capricious or
contrary to the law. Yet in spite of this standard, this court is free to examine purely legal questions decided at
the administrative level. Redmer, 110 Nev. at 378, 872 P.2d at 344 (citations omitted). This court's role in
reviewing an administrative decision is identical to that of the district court. Nevada State Bd. of Nursing v.
Merkley, 113 Nev. 659, 664, 940 P.2d 144, 147 (1997).
Even alignment required by pay table
[Headnote 5]
The slot machine had a pay table which listed the possible winning alignments and their respective payoff
amounts. The Board found that this pay table clearly showed an even alignment of jackpot symbols next to the
progressive jackpot amount, and Sengel does not dispute this finding. The Board concluded from this finding
that the even alignment of the symbols on the pay table was an express term of the wagering contract entered
into between the parties.
........................................
116 Nev. 565, 572 (2000) Sengel v. IGT
parties. However, Sengel argues that the exact horizontal alignment of symbols on the pay table is merely for
efficiency and aesthetics, and is not a binding term of the contract. However, no evidence in the record supports
this claim. With no evidence to the contrary, the Board was justified in concluding that an even alignment of
jackpot symbols was a term of the contract expressly stated on the face of the machine in the pay table.
Notice of random number generator
[Headnote 6]
Sengel characterizes one basis of the Board's decision as follows: any result on the pay line not produced by
the random number generator is void and therefore the reels themselves are irrelevant to the game. Sengel
labels this reasoning as the Board's secret policy, which allows it to arbitrarily and capriciously deny valid
jackpots at will, a secret policy whereby a visual jackpot that is not generated by a random number generator is
not a valid jackpot. Sengel argues that because the public is not given notice that jackpots not generated by a
random number generator are invalid, the Board's implementation of this policy without public notice is
arbitrary or capricious or otherwise contrary to law.
2
Sengel correctly points out that Nevada statutory and
case law provide that a malfunction voids the play of a slot machine, provided the slot machine has a statement
to that effect. He argues that if a new kind of malfunction, the kind that can merely suspend play for a time
rather than void a play, is to be recognized by the Board, it is only fair that such a statement also be included on
the face of the machine. He argues that it is arbitrary or capricious or contrary to law for the Board simply to
recognize this new kind of malfunction without first requiring notification to the public on the face of the
machine.
[Headnotes 7-9]
Sengel's argument fails for three reasons. First, Nevada Gaming Commission Regulation 14.040(2) requires
that all gaming devices [m]ust use a random selection process to determine the game outcome of each play of a
game. Because the public has constructive knowledge of this regulation, which is state law, Sengel had
constructive knowledge when he played the machine that the game result was to be determined by a random
selection process, and that any result or apparent result caused by any other means would be invalid.
__________

2
Appellant makes this argument in conjunction with a novel promissory estoppel argument. He argues that
because respondents present the Quartermania slot machine to the public as a traditional reel-type machine, with
payouts dependent only on the position of the reels and not dependent on a hidden random number generator
inside the machine, the respondents are estopped from conditioning a jackpot on the results of the random
number generator. We conclude that this argument lacks merit.
........................................
116 Nev. 565, 573 (2000) Sengel v. IGT
other means would be invalid. See Smith v. State, 38 Nev. 477, 481, 151 P. 512, 513 (1915) (stating that
[e]very one is presumed to know the law, and this presumption is not even rebuttable). Because of this
constructive knowledge, Sengel's lack of notice argument fails. Second, even if the malfunction alignment was
the final alignment and not the result of a malfunction, it is not a valid jackpot that is otherwise being denied
arbitrarily. The Board found that the uneven alignment of the Quartermania symbols did not constitute a jackpot,
even if that alignment had not been caused by a malfunction. Third, the statement on the face of the machine,
Malfunction voids all pays and plays, was sufficient to include the type of malfunction which occurred in this
case.
Rules of play
Next, Sengel contends that the Board's denial of the jackpot is arbitrary and capricious because it violates
the rules of play associated with slot machine play. However, he cites no legal authority to support his rules
of play and instead claims that the rules of play have been in effect for so long, are used so often, and are so
widely known that it is difficult to find them cited as such in any one place.
3
We need not consider this
argument because Sengel cites no legal authority to support it. See Cunningham v. State, 94 Nev. 128, 130, 575
P.2d 936, 938 (1978).
Alignment anywhere on pay line
[Headnote 10]
Finally, Sengel argues that the language on the machine, On payline with two quarters in wins
progressive, only requires that the symbols need be anywhere on the pay line, not perfectly aligned with the
other symbols and not necessarily bisected by the pay line. The only evidence in support of this proposition is
the testimony of Sengel's expert witness, a former slot manager who retired twenty years ago. The expert opined
that the malfunction alignment was a winning alignment because all the symbols were cut somewhere by the pay
line. He stated that a jackpot symbol is a winning symbol if it stops anywhere on the pay line, regardless of
whether it is aligned with the other symbols. The Board, however, was free to discount the expert's testimony
because he had been out of the gaming industry for twenty years. The Board was free to give more weight to an
express term on the face of the slot machine,
__________

3
Appellant further states that the decisions of the Board and district court seem to presume the existence of
the rules of play, without elaborating why. Appellant also requests this court to take judicial notice of his rules of
play, without citing any determinative legal or non-legal authority in support of his request. We decline to do so.
........................................
116 Nev. 565, 574 (2000) Sengel v. IGT
machine, the picture on the pay table showing an even alignment of jackpot symbols, than to the opinion of a
retired casino manager. There was evidence on the pay table located on the face of the machine that the symbols
had to be evenly aligned and there was evidence that the symbols were in fact not in the even alignment shown
on the pay table. Accordingly, the Board's conclusion that Sengel did not have a valid win was not arbitrary or
capricious or contrary to law.
In closing, we note that both parties have advanced public policy arguments in support of their positions.
While we appreciate the tension between these and other competing public policies, it is not this court's role to
dictate public policy in gaming. The State Legislature, in enacting the legislative scheme of which NRS
463.3666 is a part, has empowered the Nevada Gaming Control Board, not this court, to make these policy
decisions.
CONCLUSION
This court shows great deference to a decision of the Nevada Gaming Control Board. Because the Board's
decision was not unsupported by any evidence and was not arbitrary or capricious or otherwise contrary to
law, we affirm the order of the district court upholding the Board's decision.
4

Maupin, Shearing and Becker, JJ., concur, and Zenoff, Sr. J., concurs in result only.
__________

4
The Honorable David Zenoff, Senior Justice, was appointed by the court to sit in place of The Honorable
Deborah Agosti, Justice. Nev. Const. art. 6, 19; SCR 10.
The Honorable Robert Rose, Chief Justice, and The Honorable Cliff Young, Justice, voluntarily recused
themselves from participation in the decision of this appeal.
____________
116 Nev. 575, 575 (2000) Cramer v. Peavy
MARC CRAMER, Appellant, v. CHARLES WARREN PEAVY, NEVADA CHECKER CAB
CORPORATION, a Nevada Corporation, dba CHECKER CAB CO., dba CHECKER CAB, Respondents.
No. 33128
July 14, 2000 3 P.3d 665
Appeal from a judgment entered on a jury verdict and an order of the district court denying a motion for a
new trial in a negligence action. Eighth Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
Taxicab driver injured in collision with another taxicab brought personal injury action against owner and
driver of other taxicab. The district court entered judgment on a jury verdict for defendants and denied plaintiff
driver's motion for new trial. Plaintiff appealed. The supreme court held that: (1) defendants' improper
references to plaintiff's receipt of workers' compensation benefits did not warrant mistrial, and (2) statute
requiring that jury in personal injury action be instructed that plaintiff has received workers' compensation
benefits and that procedure is in place for repaying those benefits from any damage award was constitutional.
Affirmed.
Hale Lane Peek Dennison Howard and Anderson and Robert D. Martin, Las Vegas, for Appellant.
Kirby R. Wells & Associates, Las Vegas, for Respondents.
Beckett & Yott, Carson City, for Amicus Curiae Employers Insurance Company of Nevada.
Denial of a motion for mistrial can only be reversed where there is a clear showing of an abuse of discretion.
2. Statutes.
The intent of the legislature is the controlling factor in statutory interpretation.
3. Damages.
Statute requiring that jury in personal injury action be instructed that plaintiff has received workers' compensation benefits and
that procedure is in place for repaying those benefits from any damage award is intended to avoid jury speculation as to amount of
workers' compensation benefits received and a corresponding reduction of any damage award by jury in an attempt to reach a just
verdict. NRS 616C.215(10).
4. Trial.
Defendant's improper references to plaintiff's receipt of workers' compensation benefits did not warrant mistrial in personal injury
action, where ample evidence supported jury's verdict in favor of defendants and jury was properly instructed on the
workers' compensation benefits.
........................................
jury was properly instructed on the workers' compensation benefits. NRS 616C.215(10).
When a statute is challenged on constitutional grounds, it is to be construed in favor of the legislative power.
6. Courts.
The legislature has the power to enact rules of evidence.
7. Constitutional Law; Damages.
Legislature did not exceed its authority in enacting statute requiring that jury in personal injury action be instructed that plaintiff
has received workers' compensation benefits and that procedure is in place for repaying those benefits from any damages award. NRS
616C.215(10).
8. Damages.
Jury's verdict in favor of defendant was not inconsistent in personal injury action tried on issue of damages, notwithstanding
defense counsel's concession during closing arguments that plaintiff was entitled to approximately $20,000.00 in damages, where
plaintiff's attorney repeatedly invited the jury to award plaintiff nothing if it believed he was untruthful.
9. Courts.
One of supreme court's primary objectives is to promote the efficient administration of justice.
10. Trial.
The efficient administration of justice requires that any doubts concerning a verdict's consistency with Nevada law be addressed
before the court dismisses the jury.
Failure to timely object to the filing of the verdict or to move that the case be resubmitted to the jury constitutes a waiver of the
issue of an inconsistent verdict.
Personal injury plaintiff waived claim that jury verdict was inconsistent by failing to object to verdict before the jury was
discharged.
Before Rose, C. J., Young and Agosti, JJ.
OPINION
Per Curiam:
Appellant Marc Cramer was injured when the taxi he was driving collided with a taxi driven by
respondent Charles Warren Peavy and owned by respondent Nevada Checker Cab Corporation. The jury
returned a verdict in favor of the respondents (hereinafter Checker Cab).
On appeal, Cramer contends that: (1) the district court erred in denying his motions for mistrial made
when the jury was told he had received compensation from the State Industrial Insurance System (SIIS);
(2) NRS 616C.215(10) violates the separation of powers doctrine; and (3) the district court abused its
discretion in denying his motion for a new trial on the ground that the jury manifestly
disregarded the court's instructions in reaching a verdict.
........................................
in denying his motion for a new trial on the ground that the jury manifestly disregarded the court's instructions in
reaching a verdict.
We conclude first that the district court did not err in denying Cramer's motions for a mistrial, second that
NRS 616C.215(10) is constitutional, and finally that Cramer failed to preserve the issue of whether the jury
manifestly disregarded the court's instructions. Therefore, we affirm the judgment entered below.
FACTS
In January 1995 Marc Cramer was employed by Desert Cab. On January 19, 1995, a Checker Cab driven
by Charles Warren Peavy ran a red light and collided with the taxi driven by Cramer. Checker Cab stipulated
at trial that it was liable in causing the accident.
Cramer has been involved in three serious automobile accidents. One was approximately two years prior to
and the other approximately one year subsequent to the accident at issue here. Cramer sustained injuries in all
three accidents. At trial, the central issue was which, if any, of his permanent injuries were caused by the
January 1995 accident.
During trial, Checker Cab primarily sought to undermine Cramer's credibility. While Cramer sought
approximately $350,000.00 in damages for various injuries and pain and suffering, the defendants argued that
the only injuries attributable to this accident were nothing more than cuts and bruises. The jury returned a
verdict for Checker Cab.
Cramer eventually consulted with eight doctors after the accident. Five of the doctors testified at trial, and
the reports of the other three were entered into evidence. The medical evidence was frequently contradictory.
The most seriously contested of Cramer's damage claims was an injury Cramer claimed he received to his
coccyx.
1
Both Dr. Frederick C. Redfern, who was Cramer's treating physician, and a different doctor, who
examined Cramer later, found that Cramer had injured his coccyx in the accident. Another doctor testified that
Cramer could not have injured his coccyx in the accident. A fourth doctor testified that, theoretically, under
exact conditions, Cramer could have injured his coccyx in the accident, but that if he had, he would have been
in pain at the time he was examined, which he was not. Finally, yet another doctor testified that a fracture to the
coccyx would not cause the symptoms that Cramer was experiencing.
__________

1
The coccyx is the last bone of the spinal column. J.E. Schmidt, M.D., 2 Attorneys' Dictionary of Medicine,
C-335 (1999).
........................................
At trial, Checker Cab made several references to the fact that SIIS had paid some of Cramer's medical
expenses.
In his opening statement, counsel for Checker Cab stated, Surprise, surprise . . . . Dr. Redfern, first thing he
does is he insists that the SIIS . . . pay for MRIs for Mr. Cramer's knees. The SIIS is . . . the entity that is
responsible to pay for all the medical and disability that Mr. Cramer has gotten so far. That's what workman's
comp is about. Checker Cab also stated, [T]he evidence is going to show, to a certain extent, poor old SIIS
held the bag in this case.
During its cross-examination of Dr. Redfern, Checker Cab asked how much he was reimbursed by SIIS in
contrast to what he had charged. The doctor was also questioned at length as to the intricacies of his billing
procedures.
The next day Cramer moved for a mistrial on the ground that Checker Cab had violated the collateral source
rule by telling the jury that Cramer did not have to pay his medical bills. The motion was denied. However, the
court said that it would give an instruction on it if Cramer wished.
Checker Cab referred to the SIIS benefits again during its closing argument stating, Mr. Cramer, of course,
had all of the medical bills that were generated in this case paid for by SIIS and got a PPD [permanent partial
disability] award on top of that. Checker Cab then reread to the jury part of the SIIS instruction given earlier by
the court
2
and stated: That means regardless of how much you award Mr. Cramer in this case, he doesn't have
to repay the SIIS for what he's already gotten. At that point Cramer objected to the statement as being an
incorrect statement of the law and moved again for a mistrial. Before the motion was denied, the following
exchange took place:
COUNSEL FOR CRAMER: Your Honor, I hate to object, but he just made a statement that's incorrect
as to the law.
THE COURT: I think you misstated.
COUNSEL FOR CRAMER: He stated the exact opposite of what's legally true.
THE COURT: I don't think he meant to do that. I think you
COUNSEL FOR CHECKER CAB: If the plaintiff does not obtain a judgment in his favor
THE COURT: that's receiving enough.
__________

2
Checker Cab read to the jury as follows: If the plaintiff does not obtain a judgment in his favor in this case,
he is not required to repay his employer, the insurer or the administrator.
........................................
COUNSEL FOR CRAMER: You said if he receives an award, he doesn't have to repay.
COUNSEL FOR CHECKER CAB: I apologize, Your Honor. You're right. I misspoke.
COUNSEL FOR CRAMER: Your Honor, based on that comment, I'd move for a mistrial.
THE COURT: Counsel, we are clearing it up right now. He just misspoke.
COUNSEL FOR CHECKER CAB: I misspoke about the SIIS. What I was trying to get at was the
system, the SIIS system, doesn't depend upon fault.
Before the jury commenced deliberations, the district court attempted to clarify any confusion created by
Checker Cab's misstatement of the law. The court told the jurors that:
On Instruction Number 21, it's really a quite simple instruction. All you have to remember, ladies and
gentlemen, is that you come back with the judgment, the amount of money, if any, that you deem
appropriate without any deductions. That's all you have to remember. You come back with a judgment, if
any, that you deem it's [sic] appropriate; no deductions.
Prior to closing arguments, the jury was given the statutory instruction on workers' compensation as required
by NRS 616C.215(10).
3
The jury was also told that Checker Cab had admitted liability for any of Cramer's
injuries that were proximately caused by the accident, and was instructed on proximate cause and damages.
The jury returned a verdict for Checker Cab. Cramer moved for a new trial under NRCP 59 on the grounds
that the district court erred as a matter of law because Checker Cab's references to SIIS
violated the collateral source rule and that the jury disregarded the court's instructions in
reaching the verdict.
__________

3
NRS 616C.215(10) requires that the jury be instructed that:
Payment of workmen's compensation benefits by the insurer, or in the case of claims involving the
uninsured employers' claim fund or a subsequent injury fund the administrator, is based upon the fact that
a compensable industrial accident occurred, and does not depend upon blame or fault. If the plaintiff does
not obtain a judgment in his favor in this case, he is not required to repay his employer, the insurer or the
administrator any amount paid to him or paid on his behalf by his employer, the insurer or the
administrator.
If you decide that the plaintiff is entitled to judgment against the defendant, you shall find his
damages in accordance with the court's instructions on damages and return your verdict in the plaintiff's
favor in the amount so found without deducting the amount of any compensation benefits paid to or for
the plaintiff. The law provides a means by which any compensation benefits will be repaid from your
award.
........................................
erred as a matter of law because Checker Cab's references to SIIS violated the collateral source rule and that the
jury disregarded the court's instructions in reaching the verdict. The motion was denied. Cramer then filed this
appeal.
DISCUSSION
References to SIIS
Cramer contends that the district court's failure to grant a mistrial on the ground that Checker Cab
repeatedly informed the jury of SIIS benefits is reversible error. We disagree.
[Headnote 1]
Denial of a motion for mistrial can only be reversed where there is a clear showing of an abuse of
discretion. Mortensen v. State, 115 Nev. 273, 281, 986 P.2d 1105, 1111 (1999). NRS 616C.215(10) provides
that:
In any trial of an action by the injured employee . . . against a person other than the employer . . . the
jury must receive proof of the amount of all payments made or to be made by the insurer or the
administrator.
Based upon the language of the statute, we conclude that the district court did not abuse its discretion in
failing to grant a mistrial on the ground that the jury was informed that Cramer received SIIS benefits.
[Headnote 2]
However, we note that the way in which Checker Cab chose to handle the SIIS issue skirted the edges of
propriety. Having reviewed the legislative history of NRS 616C.215(10), we conclude that the legislature did
not intend NRS 616C.215(10) to eviscerate the collateral source rule. Rather, the statute creates a narrow
exception to the rule. The intent of the legislature is the controlling factor in statutory interpretation.
Cleghorn v. Hess, 109 Nev. 544, 548, 853 P.2d 1260, 1262 (1993).
[Headnote 3]
The legislative history of NRS 616C.215(10) shows that the legislature expressed concern about the practice
of informing the jury that the plaintiff had received workers' compensation benefits. Minutes of the Meeting on
S.B. 211 Before the Senate Judiciary Comm., 59th Leg. at 4 (Nev., February 23, 1977). Senate Bill 211
amended what was then NRS 616.560(5) and is currently NRS 616C.215(10) by adding the jury instructions
that are now at issue. In considering the jury instructions, the legislature expressed its view that cases involving
SIIS benefits are unique from other insurance cases because the jury already knows that the plaintiff has
received SIIS benefits if the injury was work related.
........................................
related. Id. at 3 (April 4, 1977). The legislature received evidence that under the system as it then existed, the
jury was usually under the mistaken belief that the plaintiff was not required to repay SIIS from any damage
award. Id. at Exhibit E. In an attempt to reach a just verdict, the jury would speculate as to how much the
plaintiff had received from SIIS and reduce the award accordingly. Id. Thus, NRS 616C.215(10) was intended to
curtail this practice.
Accordingly, NRS 616C.215(10) cannot be used by the defense to imply that the plaintiff has already been
compensated, will receive a double recovery if awarded a judgment or has overcharged SIIS. The statute
properly informs the jury that the plaintiff has received SIIS benefits and that there is a procedure in place for
repaying SIIS from any damage award.
We conclude that the references made by Checker Cab concerning SIIS payments were improper. However,
the references were neither so egregious nor so numerous as to confuse the jury or affect the verdict reached.
[Headnote 4]
Cramer's prior and subsequent accidents created a factual question for the jury as to which of his permanent
injuries, if any, were caused by the accident of January 1995. See Mulder v. State, 116 Nev. 1, 15, 992 P.2d 845,
853-54 (2000) (The trier of fact determines the weight and credibility to give conflicting testimony.). This case
was primarily about Cramer's credibility. The jury received ample evidence to support a finding that his
permanent injuries were either non-existent or unrelated to this accident. In fact, in Cramer's closing argument,
his attorney invited the jury to return a defense verdict if they did not believe his client.
4
The jury was properly
instructed on SIIS payments, and its verdict is supported by substantial evidence and not clearly erroneous in
light of all the evidence presented. Frances v. Plaza Pacific Equities, 109 Nev. 91, 94, 847 P.2d 722, 724 (1993).
Accordingly, the district court did not abuse its discretion in declining to grant a mistrial.
Constitutionality of NRS 616C.215(10)
Cramer also contends that NRS 616C.215(10) is unconstitutional because the legislatively
mandated jury instruction infringes on a judicial function and therefore violates the
separation of powers doctrine.
__________

4
Cramer's attorney told the jury on three occasions during closing arguments to award Cramer nothing if it
did not believe him, saying at one point:
[Cramer]'s the one who gets put on trial. He's the one who there are daggers being thrown at him
throughout the trial, throughout the discovery process; he's a liar, he's dishonest; this is all baloney; this
is all crap; none of it is true.
If you believe that, don't award him a dime. If you think he's a liar, if you think everything he's told
you is untrue, if you think those pictures are false, if you think they have been doctored, award zero
dollars in this case; find for the defense.
........................................
tional because the legislatively mandated jury instruction infringes on a judicial function and therefore violates
the separation of powers doctrine.
In Proctor v. Castelletti, 112 Nev. 88, 911 P.2d 853 (1996), we adopted a per se rule barring the admission
of a collateral source of payment for an injury into evidence for any purpose. Id. at 90, 911 P.2d at 854. Cramer
argues that NRS 616C.215(10) cannot be reconciled with Proctor, and that the statute is therefore
unconstitutional.
[Headnotes 5-7]
When a statute is challenged on constitutional grounds, it is to be construed in favor of the legislative
power. Galloway v. Truesdell, 83 Nev. 13, 20, 422 P.2d 237, 242 (1967). The legislature has the power to
enact rules of evidence. Barrett v. Baird, 111 Nev. 1496, 1512, 908 P.2d 689, 700 (1995). Furthermore, no
person has a vested right in a rule of law, nor can anyone assert a vested right in any particular mode of
procedure. Nevada Industrial Comm'n v. Reese, 93 Nev. 115, 123, 560 P.2d 1352, 1357 (1977). We conclude
that the legislature did not exceed its authority in enacting NRS 616C.215(10), and that NRS 616C.215(10) is
not superceded by Proctor, but rather is an exception to the per se rule against collateral sources we articulated
in that case.
Jury verdict
[Headnote 8]
Cramer argues that the jury's verdict is inconsistent because in its closing arguments the defense conceded
that Cramer was entitled to approximately $20,000.00 in damages, yet the jury awarded him nothing. We
conclude that Cramer's argument lacks merit. As noted, Cramer's attorney repeatedly invited the jury to award
Cramer nothing if it believed he was untruthful. We cannot say that the jury acted improperly when it
apparently followed the direction of Cramer's attorney. Moreover, Cramer has failed to preserve the question of
whether the jury manifestly disregarded the court's instructions.
[Headnotes 9-12]
One of this court's primary objective[s] is to promote the efficient administration of justice. Eberhard
Mfg. Co. v. Baldwin, 97 Nev. 271, 273, 628 P.2d 681, 682 (1981). The efficient administration of justice
requires that any doubts concerning a verdict's consistency with Nevada law be addressed before the court
dismisses the jury. Carlson v. Locatelli, 109 Nev. 257, 262-63, 849 P.2d 313, 316 (1993). Where possible, the
verdict should be salvaged so that no new trial is required. Id. at 263, S49 P.2d at 316-17.
........................................
849 P.2d at 316-17. In furtherance of this goal, we have formulated the policy that failure to timely object to the
filing of the verdict or to move that the case be resubmitted to the jury constitutes a waiver of the issue of an
inconsistent verdict. Eberhard, 97 Nev. at 273, 628 P.2d at 682. See also Brascia v. Johnson, 105 Nev. 592, 596
n.2, 781 P.2d 765, 768 n.2 (1989); Carlson, 109 Nev. at 262-63, 849 P.2d at 316-17. Accordingly, to preserve
the issue for appeal, Cramer was required to object to the verdict before the jury was discharged. The trial court
would then have had the opportunity to consider whether it was impossible for the jury to return a defense
verdict as a matter of law, and if so, the matter could have been returned to the jury with additional instructions.
This procedure would have promoted fairness and the efficient administration of justice. Cramer failed to make a
timely objection. Therefore, we will not consider his argument now.
CONCLUSION
We conclude that the district court did not abuse its discretion in denying a mistrial. We also conclude that
NRS 616C.215(10) is constitutional. Finally, Cramer failed to preserve the issue of whether the jury manifestly
disregarded the court's instructions in reaching a verdict. We therefore affirm the district court's judgment and
the order denying Cramer's motion for a new trial.
____________
116 Nev. 583, 583 (2000) Falcke v. Douglas County
ROGER FALCKE and HERBIG PROPERTIES LIMITED, a Nevada Limited Partnership, Petitioners, v. THE
COUNTY OF DOUGLAS, a Political Subdivision of THE STATE OF NEVADA; and THE
DOUGLAS COUNTY BOARD OF COMMISSIONERS, Respondents.
No. 35076
July 14, 2000 3 P.3d 661
Original petition for a writ of mandamus challenging a decision by the Douglas County Board of
Commissioners to deny petitioners' application for a master plan amendment.
Landowner petitioned for writ of mandamus, challenging county board of commissioners' deemed denial of
master plan amendment, occurring when amendment failed to achieve super-majority vote, as required by county
ordinance. The supreme court, addressing an issue of first impression, held that ordinance conflicted with statute
which permitted county board to approve master plan amendment recommended by county planning
commission, but did not require such approval to be by supermajority vote.
........................................
mission, but did not require such approval to be by super-majority vote.
Petition granted.
Allison MacKenzie Hartman Soumbeniotis & Russell and James R. Cavilia, Carson City, for Petitioners.
Scott W. Doyle, District Attorney, and Thomas E. Perkins, Deputy District Attorney, Douglas County,
for Respondents.
1. Mandamus.
Petition for writ of mandamus was proper method to challenge county board of commissioners' deemed denial of master
plan amendment, occurring when amendment failed to achieve super-majority vote. Although petitioner could have sought
declaratory relief, petition raised urgent and important issue of law requiring clarification by supreme court. NRS 30.040,
34.160.
2. Mandamus.
Where circumstances reveal urgency or strong necessity, supreme court may grant extraordinary relief.
3. Zoning and Planning.
County code provision requiring two-thirds super-majority vote by county board of commissioners to approve a master
plan amendment conflicted with statute which permitted county board to approve master plan amendment recommended by
county planning commission, but did not require such approval to be by super-majority vote. NRS 278.210(2), 278.220.
4. Counties.
Because counties obtain their authority from the legislature, county ordinances are subordinate to statutes if the two
conflict.
5. Statutes.
Where the language of a statute is plain and unambiguous there is no room for construction, and the courts are not
permitted to search for its meaning beyond the statute itself.
6. Statutes.
Where a statute is susceptible to more than one interpretation it should be construed in line with what reason and public
policy would indicate the legislature intended.
7. Zoning and Planning.
Statute permitting county board to approve master plan amendment recommended by county planning commission does
not require that the board's decision comport with the planning commission's decision in approving a master plan amendment.
NRS 278.220.
OPINION
Per Curiam:
Petitioners applied to the Douglas County Community Development Department for a master plan
amendment and zoning change to real property.
........................................
ing change to real property. After approval by the Douglas County Planning Commission, the Douglas County
Board of Commissioners voted three-to-two in favor of the master plan amendment. However, the three-to-two
vote was deemed a denial of the master plan amendment under Douglas County Development Code
20.608.070, which requires a super-majority vote to approve any master plan amendment. For the reasons
discussed herein, we conclude that the petitioners appropriately seek relief by way of a petition for a writ of
mandamus and that Douglas County Development Code 20.608.070 is invalid because it conflicts with NRS
Chapter 278. We therefore grant this petition.
FACTS
While acting as the agent and representative for petitioner Herbig Properties Limited (Herbig), petitioner
Roger Falcke (Falcke) applied to the Douglas County Community Development Department in June 1999 for
a master plan amendment and zoning change to real property owned by Herbig. The property is located
between U.S. Highway 395 and Waterloo Lane in Douglas County and is comprised of thirty and fifty-five
one-hundredths (30.55) acres. Specifically, Falcke's application sought to change the property's master plan
designation from 30.55 acres of agriculture to 22.87 acres of public facilities and 7.68 acres of commercial.
Falcke's application also sought a zoning change from all agriculture to 22.87 acres of public facilities and
7.68 acres of neighborhood commercial.
On August 17, 1999, the Douglas County Planning Commission (the Planning Commission)
recommended approval of the master plan amendment with a five-to-two vote in favor of the amendment. Under
Douglas County Development Code (DCDC) 20.608.030, a two-thirds vote is required by the Planning
Commission to approve a master plan amendment. The Planning Commission also voted to recommend
approval of the zoning change with a four-to-three vote in favor of the zoning change, which requires only a
simple majority vote under DCDC 20.610.020(D).
On September 2, 1999, the Douglas County Board of Commissioners (the Board) met and considered the
master plan amendment and the zoning change. After a motion was made to approve the requested master plan
amendment, the Board voted three-to-two in favor of the master plan amendment. However, under DCDC
20.608.070, a super-majority
1
vote of the Board is required to approve any master plan
amendment.
__________

1
Because the Board is comprised of five members, a super-majority consists of a four-to-one vote.
........................................
is required to approve any master plan amendment. Therefore, the Board's vote in favor of the master plan
amendment was deemed a denial. Because the Board did not approve the master plan amendment, it appears that
the Board never reached the second issue of the zoning change.
After a rehearing held on October 7, 1999, the Board again voted three-to-two in favor of the master plan
amendment, which was again deemed a denial under DCDC 20.608.070. Subsequently, Falcke and Herbig
filed in this court an original petition for a writ of mandamus challenging the Board's decision.
DISCUSSION
[Headnote 1]
As a threshold issue, we must first consider whether a petition for a writ of mandamus is the proper method
to challenge the Board's decision. Falcke argues that a writ of mandamus is an appropriate remedy even
though he could have sought relief through a declaratory judgment under NRS 30.040. We agree.
[Headnote 2]
This court may issue a writ of mandamus in order to compel the performance of an act which the law
especially enjoins as a duty resulting from an office, trust or station. NRS 34.160. Generally, a writ of
mandamus may issue only when there is no plain, speedy, and adequate remedy at law. See NRS 34.170.
However, where circumstances reveal urgency or strong necessity, this court may grant extraordinary relief. See
Jeep Corp. v. District Court, 98 Nev. 440, 443, 652 P.2d 1183, 1185 (1982). Moreover, where an important
issue of law needs clarification and public policy is served by this court's invocation of its original jurisdiction,
our consideration of a petition for extraordinary relief may be justified. Business Computer Rentals v. State
Treas., 114 Nev. 63, 67, 953 P.2d 13, 15 (1998).
In the present case, the Board correctly points out that Falcke could have sought relief through a declaratory
judgment under NRS 30.040. NRS 30.040 provides that any person whose rights are affected by a statute or
ordinance may have determined any question of construction or validity arising under the instrument, statute,
ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.
Indeed, Falcke does challenge the validity of DCDC 20.608.070.
We conclude that the conflict presented by this petition between NRS Chapter 278 and DCDC 20.608.070
is an urgent and important issue of law, which requires clarification by this court. As the Board acknowledges in
its opposition papers, land use and development are important public policy issues confronting Douglas
County as well as other counties in Nevada.
........................................
Douglas County as well as other counties in Nevada. Here, public policy would be best served by reaching the
merits of the instant petition in order to provide guidance to Douglas County, and other counties, in properly
following the dictates of NRS Chapter 278. Consequently, we conclude that our consideration of this petition on
its merits is justified under these circumstances.
2

[Headnote 3]
Falcke next argues that DCDC 20.608.070 conflicts with NRS 278.220 and is therefore invalid. We agree.
Under NRS 278.020, the legislature granted counties the authority to regulate and restrict the improvement
of land for the purpose of promoting health, safety, morals, or the general welfare of the community. Pursuant to
this authority, the Planning Commission is required to prepare and enact a long-term master plan for the
development of the county. See NRS 278.150. In 1996, the Board adopted a master plan, which can be amended
subject to approval by the Planning Commission and the Board.
NRS 278.210(2) provides that [t]he adoption of the master plan, or of any amendment, extension or
addition thereof, shall be by resolution of the [planning] commission carried by the affirmative votes of not less
than two-thirds of the total membership of the commission. DCDC 20.608.030(A) echoes NRS 278.210(2) by
stating that [t]he [planning] commission may approve a master plan amendment only upon the affirmative vote
of a two-thirds majority of the total membership of the commission. The Planning Commission's
recommendation is then forwarded to the Board for consideration. See NRS 278.210(4).
NRS 278.220(1) states that [u]pon receipt of a certified copy of the master plan, or of any part thereof, as
adopted by the planning commission, the [Board] may adopt such parts thereof as may practicably be
applied to the development of the city, county or region for a reasonable period of time
next ensuing."
__________

2
The Board raises two additional arguments. First, the Board argues that Falcke has failed to exhaust his
administrative remedies by not presenting to the Board his argument concerning the validity of DCDC
20.608.070. The Board relies solely on First American Title Co. v. State of Nevada, 91 Nev. 804, 543 P.2d 1344
(1975), as support for its argument. In First Am. Title Co., this court held that a taxpayer could not maintain a
suit where it had failed to challenge the property valuation before the county and state boards of equalization as
required under Nevada statute. See id. at 805-06, 543 P.2d at 1345. We conclude that First Am. Title Co. is
inapplicable to this case because no similar Nevada statute requires Falcke to first present his challenge to the
Board.
Second, the Board also argues that mandamus does not lie because the Board had no duty to grant the master
plan amendment. As discussed herein, we conclude that the Board does have a duty to grant the master plan
amendment under NRS 278.220 because it voted twice to approve the amendment on a three-to-two majority
vote. Accordingly, we conclude that mandamus is appropriate in this case in order to compel the Board, by
virtue of its vote, to grant Falcke's amendment to the master plan.
........................................
may practicably be applied to the development of the city, county or region for a reasonable period of time next
ensuing. Nothing in NRS 278.220 requires a two-thirds or super-majority vote by the Board to approve a
master plan amendment. Indeed, NRS 278.220 is silent on the issue. However, DCDC 20.608.070(A) states
that [o]nly upon the affirmative vote of a super-majority of the total membership and concurrence by the
planning commission shall the board approve a master plan amendment.
[Headnote 4]
The question of whether DCDC 20.608.070 conflicts with NRS 278.220 by requiring a super-majority vote
to approve a master plan amendment is an issue of first impression in Nevada. As a preliminary matter, it is clear
that counties are legislative subdivisions of the state. See Nev. Const. art. 4, 25. Because counties obtain their
authority from the legislature, county ordinances are subordinate to statutes if the two conflict. See Lamb v.
Mirin, 90 Nev. 329, 332-33, 526 P.2d 80, 82 (1974).
[Headnotes 5, 6]
Additionally, [i]t is well settled in Nevada that words in a statute should be given their plain meaning unless
this violates the spirit of the act. McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 440 (1986).
Where the language of a statute is plain and unambiguous . . . there is no room for construction, and the courts
are not permitted to search for its meaning beyond the statute itself.' Charlie Brown Constr. Co. v. Boulder
City, 106 Nev. 497, 503, 797 P.2d 946, 949 (1990), overruled on other grounds by Calloway v. City of Reno,
116 Nev. 250, 993 P.2d 1259 (2000) (quoting In re Walters' Estate, 60 Nev. 172, 183-84, 104 P.2d 968, 973
(1940)). However, where a statute is susceptible to more than one interpretation it should be construed in line
with what reason and public policy would indicate the legislature intended.' State, Dep't of Mtr. Vehicles v.
Lovett, 110 Nev. 473, 477, 874 P.2d 1247, 1250 (1994) (quoting State, Dep't Mtr. Vehicles v. Vezeris, 102 Nev.
232, 236, 720 P.2d 1208, 1211 (1986)).
In an attempt to justify the deviation of DCDC 20.608.070 from NRS 278.220, the Board essentially
argues that the silence of NRS 278.220 gives the Board the authority to require a super-majority vote. On its
face, the Board's argument appears reasonable. However, the Board fails to cite to any authority supporting the
proposition that it may choose what portions of NRS Chapter 278 it must follow and what portions it does not
have to follow.
3

__________

3
The Board does cite to Lamb, 90 Nev. at 332-33, 526 P.2d at 82, as support for the proposition that local
county or city ordinances are invalidated by statute only if the legislature intended to occupy the field of
regulation in the relevant area of legislation. The Board goes on to argue that NRS Chapter
........................................
After a careful review of NRS Chapter 278 and other relevant statutes, we conclude that NRS Chapter 278
provides a comprehensive statutory framework for the Board to follow as it designs and implements the master
plan for Douglas County. Because the legislature omitted any reference to a voting requirement in NRS 278.220,
we conclude that this omission reflects the legislature's intent to require only a simple majority vote by the Board
to approve a master plan amendment. If the legislature intended to require a super-majority vote of the Board to
amend the master plan, it would have expressed this intent just as it had done in NRS 278.210 by requiring a
two-thirds vote of the Planning Commission.
Indeed, the legislature has expressly required a heightened voting standard by the Board in a number of other
instances. See, e.g., NRS 377B.100 (two-thirds vote by the Board required to approve tax for infrastructure);
NRS 540A.040 (two-thirds vote by the Board required to take action concerning the Board's administrative
matters); NRS 705.020 (two-thirds vote by the Board required to grant use of a street to the railroad). Certainly,
the desire of the Board to curtail development and strictly control land use is understandable. However, given
the legislature's decision to not impose a heightened voting standard under NRS 278.220, we conclude that the
Board cannot independently impose this requirement.
[Headnote 7]
Accordingly, we conclude that the Board exceeded the legislative authority granted it under NRS Chapter
278 by requiring a super-majority vote by the Board to approve a master plan amendment. Because the
legislature specifically excluded any reference to a two-thirds or super-majority voting requirement by the
Board, we further conclude that the legislature intended to require only a simple majority vote by the Board to
approve a master plan amendment under NRS 278.220. As this court has noted, it is not the business of this
court to fill in alleged legislative omissions based on conjecture as to what the legislature would or should have
done. McKay v. Board of Cty. Comm'r, 103 Nev. 490, 492, 746 P.2d 124, 125 {19S7).
__________
278 has delegated all authority regarding land use and development issues to the Board, including the authority
to require a super-majority vote by the Board to approve a master plan amendment. However, we conclude that
Lamb is inapplicable to this case on this issue because, as discussed above, the legislature clearly did not intend
to occupy the field of regulation concerning local land use and development issues. Rather, pursuant to NRS
Chapter 278, the legislature sought to provide a clear and unambiguous statutory framework for the Board to
follow as it created its own master plan and amendments thereto. Thus, we conclude that NRS Chapter 278 does
not grant the Board authority to deviate from the specific language and requirements of NRS 278.220.
........................................
490, 492, 746 P.2d 124, 125 (1987). We therefore hold that DCDC 20.608.070 is invalid because it goes
beyond the legislative intent espoused in NRS 278.220.
4

CONCLUSION
Because the Board twice voted in favor of Falcke's application for a master plan amendment on a
three-to-two majority vote, we conclude that the Board approved the master plan amendment under NRS
278.220. By virtue of its vote, we further conclude that the Board has a duty under NRS 34.160 to give effect to
its vote and approve Falcke's master plan amendment. Accordingly, we grant Falcke's petition. The clerk of this
court shall issue a writ of mandamus compelling the Board to approve Falcke's application for a master plan
amendment.
5

____________
116 Nev. 590, 590 (2000) Vitale v. Jefferson Ins. Co.
PHYLISS VITALE; CHRISTINE MASCOLA; JUSTIN SMITH, By and Through His Legal Guardian,
CHRISTINE MASCOLA; CLARA MOOR and SECOND MOM CHILD CARE, an Unincorporated
Business Entity, and DENNIS MOOR, Appellants, v. JEFFERSON INSURANCE COMPANY OF
NEW YORK, Respondent.
No. 32655
August 18, 2000 5 P.3d 1054
Appeal from a district court order and judgment declaring noncoverage under an insurance policy. Eighth
Judicial District Court, Clark County; Nancy A. Becker, Judge.
Assignees of causes of action against general liability insurer for day care business brought action for
declaratory judgment that insurer owed coverage for assignees' injuries in automobile accident.
__________

4
We note that DCDC 20.608.060 and 20.608.070 conflict with NRS 278.220 in another crucial way. The
plain language of NRS 278.220 does not require that the Board's decision comport with the Planning
Commission's decision in approving a master plan amendment. See NRS 278.220; 79-14 Op. Att'y Gen. 73
(1979) (concluding that the Board is not precluded from subsequently acting on a proposed amendment to the
Master Plan which initially failed to obtain an affirmative two-thirds majority vote of the [Planning
Commission]). However, DCDC 20.608.060 and 20.608.070 require that both the Board and the Planning
Commission agree to the master plan amendment. In light of our conclusion that DCDC 20.608.070 is invalid
because it conflicts with NRS 278.220, we note this additional conflict between DCDC 20.608.060 and
20.608.070 and NRS 278.220 in order to provide guidance to Douglas County on this issue.

5
We note that after a careful review of the entire record, it appears that Falcke's request for a zoning change
of the Herbig property is still subject to approval by the Board pursuant to DCDC 20.610.040.
........................................
insurer owed coverage for assignees' injuries in automobile accident. The district court granted summary
judgment to insurer. Assignees appealed. The supreme court held that: (1) named insured's spouse, who was
conducting business for day care operation at time of collision, was a person insured for purposes of policy
provision excluding coverage for bodily injuries arising out of operation of automobiles by any insured; and (2)
insurer did not waive right to assert automobile exclusion when, in letter denying coverage, it failed to define
persons insured under policy.
Affirmed.
Harrison Kemp & Jones, Chtd., Las Vegas, for Appellants.
Beckley Singleton Jemison Cobeaga & List and Elizabeth Goff Gonzalez and Daniel F. Polsenberg, Las
Vegas; and Provizer & Phillips, P.C., and Marilyn Madorsky, Bloomfield Hills, Michigan, for Respondent.
1. Insurance.
Courts will construe the terms of an insurance policy in their plain and ordinary sense and from the viewpoint of one not
trained in law.
2. Insurance.
When an insurer restricts coverage of a policy, it should employ language that clearly and distinctly communicates to the
insured the nature of the limitation.
3. Insurance.
Any ambiguity or uncertainty in an insurance policy must be construed against the insurer and in favor of the insured.
4. Insurance.
Husband of named insured under general liability policy for day care business was person insured under provision
making spouse of a sole proprietor a person insured, and therefore policy's automobile exclusion was applicable to injuries
allegedly caused by husband in accident that occurred as he conducted business for day care operation, though policy's
declarations page did not designate business as a sole proprietorship or designate named insured as an individual in space
indicated for that purpose.
5. Insurance.
General liability insurer did not waive its right to assert automobile exclusion when, in letter denying coverage for injuries
allegedly caused by named insured's husband, it failed to define the persons insured to whom policy's automobile exclusion
was applicable. Insurer promptly noted named insured and her spouse that it was denying coverage under automobile
exclusion, which was a standard and unambiguous provision common to general liability policies.
6. Insurance.
Insurer does not waive its right to assert an exclusion where it has provided its insured with adequate notice of an
unambiguous exclusion.
Before Rose, C. J., Maupin and Shearing, JJ.
........................................
OPINION
Per Curiam:
SUMMARY
This matter presents two issues: (1) whether the designation of the named insured in a general liability
policy was ambiguous; and (2) under what circumstances does an insurer waive its right to assert an
otherwise applicable exclusion set forth in an insurance policy.
Jefferson Insurance Company of New York (Jefferson) issued a general liability policy to Clara Moor
and Second Mom Child Care (Second Mom), a day care business that Clara operated out of her home.
Clara is married to Dennis Moor. Dennis was involved in an automobile accident while driving one of their
personal vehicles in the scope and course of this family business.
Jefferson denied coverage for injuries arising out of the car accident, claiming that coverage was
excluded under the automobile exclusion clause in the policy. Appellants ultimately filed a declaratory relief
action to challenge the validity of that denial. The district court eventually granted Jefferson's motion for
summary judgment, declaring that no coverage was afforded under the policy.
Thereafter, appellants filed this timely appeal contending, among other things, that the district court erred
in granting Jefferson's motion for summary judgment because the policy did not exclude coverage, or
alternatively, because Jefferson had waived its right to assert this basis for denial of coverage. We conclude
that appellants' contentions lack merit. We therefore affirm the order and judgment of the district court.
On November 21, 1992, a car driven by Dennis, in which he held joint title with his wife, Clara, collided
with a car driven by Christine Mascola and also occupied by Phyliss Vitale and Justin Smith. Dennis was
apparently conducting business for Second Mom at the time of the accident. Thereafter, Vitale, Smith, and
Mascola filed a personal injury action against the Moors and Second Mom. This action was defended by
Liberty Mutual, as the Moors were covered by an automobile liability policy with Liberty Mutual with
aggregate policy limits of $100,000.00.
The parties to the personal injury action entered into a settlement agreement (the agreement),
whereunder the Moors and Second Mom stipulated to entry of judgment against them for $717,500.00,
and pursuant to which Liberty Mutual paid its policy limits of $100,000.00.
........................................
$717,500.00, and pursuant to which Liberty Mutual paid its policy limits of $100,000.00. The agreement further
provided that the Moors and Second Mom would assign all of their causes of action against Jefferson to Vitale,
Mascola and Smith in exchange for their agreement not to execute or record the judgment against the Moors and
Second Mom. The agreement essentially shielded the Moors and Second Mom from any direct liability for the
judgment and gave the personal injury plaintiffs the right to sue Jefferson.
Jefferson issued a $300,000.00 aggregate general liability policy to Clara and Second Mom. Clara purchased
the policy for $150.00 through the Professional Day Care Providers Association, a non-profit association that
serves the needs of day care providers.
Jefferson was notified of the personal injury action prior to settlement with Liberty Mutual, but denied
coverage in a letter, dated December 28, 1993. Jefferson's letter provided, in relevant part, that there was no
coverage for the claim and cited the full text of exclusion (b) of the policy, an automobile exclusion provision.
Armed with the assigned rights under the settlement agreement, Vitale, Mascola, Smith, the Moors, and
Second Mom filed a complaint seeking damages against Jefferson. They later filed a motion for partial summary
judgment alleging that exclusion (b) was inapplicable because Dennis was not one of the persons insured
under the policy. This contention was based on the discreet failure to designate Second Mom as a sole
proprietorship or Clara as an individual in the space indicated for that purpose on the declaration sheet. This
failure, they argued, rendered Dennis a non-insured under the policy because he was not a spouse of an insured
specifically designated as either an individual or a sole proprietorship. They therefore reasoned, because the
automobile exclusion could only be triggered if Dennis was a person insured under section II(a), the exclusion
could not apply. Appellants' position in this regard was offered notwithstanding that Clara was a named insured,
was in fact operating Second Mom as a sole proprietorship, was married to Dennis, and that a named insured's
spouse is a person insured under the policy. In support of their contentions, appellants proffered testimony
from a purported insurance expert.
Jefferson filed a countermotion for summary judgment, arguing that the exclusion of losses arising from
automobile accidents involving persons insured applied (exclusion (b)) for the following reasons: First, Clara
was one of the persons insured as set forth on the declaration page and an owner of the automobile that caused
the accident; second, under section II(a) of the policy, Dennis, as the spouse of Clara, was one of the persons
insured, regardless of the fact that Clara was not designated as an individual or that
Second Mom was not designated as a sole proprietorship on the declaration page.
........................................
regardless of the fact that Clara was not designated as an individual or that Second Mom was not designated as a
sole proprietorship on the declaration page.
After conducting a hearing on the cross-motions for summary judgment, the district court ruled that Jefferson
properly denied coverage under the automobile exclusion. Appellants filed this timely appeal, contending that
the district court erred because Dennis was not a person insured under the policy or, alternatively, because
Jefferson had waived its right to assert exclusion (b).
DISCUSSION
Summary judgment orders are reviewed de novo. See Day v. Zubel, 112 Nev. 972, 977, 922 P.2d 536, 539
(1996). Summary judgment is only appropriate when a review of the record in a light most favorable to the
non-moving party reveals that there are no triable issues of material fact and the moving party is entitled to
judgment as a matter of law. See id. at 972, 922 P.2d at 538.
In the instant matter, appellants contend that the district court erred in granting Jefferson's motion for
summary judgment because there was a triable issue of material fact concerning whether the policy provided
coverage for the loss sustained in the automobile accident. Specifically, appellants argue that the policy provided
coverage because it contained an extremely broad insuring clause from which the operation of motor vehicles by
Dennis, Clara, and Second Mom was not excluded from coverage. We disagree.
[Headnotes 1-3]
In reviewing coverage under an insurance policy, we are guided by several well-recognized tenets of
construction. First, we have held that we will construe the terms of an insurance policy in their plain and
ordinary sense and from the viewpoint of one not trained in law. See National Union Fire Ins. v. Reno's Exec.
Air, 100 Nev. 360, 364, 682 P.2d 1380, 1382 (1984). Second, we have held that when an insurer restricts
coverage of a policy, it should employ language that clearly and distinctly communicates to the insured the
nature of the limitation. See id. Finally, we have held that any ambiguity or uncertainty in an insurance policy
must be construed against the insurer and in favor of the insured. See id.
The insuring clause in the policy at issue provides that:
The company will pay on behalf of the insured all sums which the insured shall become legally obligated
to pay as damages because of
A. bodily injury or
B. property damage to which this insurance applies, caused by an occurrence, . . . .
........................................
to which this insurance applies, caused by an occurrence, . . . .
. . . .
An occurrence is defined as:
[A]n accident, including continuous or repeated exposure to conditions, which results in bodily injury or
property damage neither expected nor intended from the standpoint of the insured: . . . .
Although this insuring clause contains broad language, it is clearly limited by the policy section titled
Exclusions. Particularly, damages associated with an automobile accident are excluded in provision (b) that
provides:
This insurance does not apply:
. . . .
(b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading
or unloading of
(1) any automobile or aircraft owned or operated by or rented or loaned to any insured, or
(2) any other automobile or aircraft operated by any person in the course of his employment by any
insured;
. . . .
In Senteney v. Fire Insurance Exchange, 101 Nev. 654, 656, 707 P.2d 1149, 1150 (1985), we held that an
analogous automobile exclusion provision was valid in a homeowner's policy because it was clear and
unambiguous. In so doing, we stated that this court would neither rewrite unambiguous insurance provisions nor
attempt to increase the legal obligations of the parties where the parties intentionally limited such obligation. See
id. at 656, 707 P.2d at 1151.
[Headnote 4]
In light of this court's holding in Senteney and the plain language of the policy, we conclude that exclusion
(b) clearly and unambiguously excludes coverage for losses arising out of the automobile accident. As noted,
appellants contend that exclusion (b) does not apply to them because Dennis is not a person insured under the
policy.
The term person insured is defined, in relevant part, under section II of the policy:
(a) if the named insured is designated in the declarations as an individual, [a person insured is] the person
so designated but only with respect to the conduct of a business of which he is the sole proprietor,
........................................
he is the sole proprietor, and the spouse of the named insured with respect to the conduct of such a
business;
(b) if the named insured is designated in the declarations as a partnership or joint venture, [a person
insured is] the partnership or joint venture so designated and any partner or member thereof but only with
respect to his liability as such;
(c) if the named insured is designated in the declarations as other than an individual, partnership or joint
venture, [a person insured is] the organization so designated and any executive officer, director or
stockholder thereof while acting within the scope of his duties as such;
. . . .
Again, although Clara was named as the insured, was operating Second Mom as a sole proprietorship and
was married to Dennis, and although a spouse of a named insured is a person insured under the Jefferson
policy, appellants claim that the failure to designate Clara as an individual or a sole proprietor in the space
provided for such designations is determinative of whether Dennis may be a person insured for the purpose of
the exclusion. We disagree.
The plain language of section II(a) defines a person insured as both an individual designated on the
declarations page and the individual's spouse, provided they are conducting business for the insured sole
proprietorship. We conclude that Dennis falls within the purview of section II(a) because he is the spouse of
Clara, an individual named on the declarations page, and apparently conducting business for the insured sole
proprietorship, Second Mom. Indeed, the declarations page of the policy designates the Named Insured as
Second Mom Child; Clara Moor. Implicit in this designation is the fact that Clara is an individual. Further,
because Second Mom is in actuality a sole proprietorship, and not a joint venture or partnership (implicating
section II(b)), or a corporation (implicating section II(c)), section II(a)'s definition of persons insured is
applicable. Thus, the failure to check the box on the declaration sheet denominating the named insured as either
an individual or as a sole proprietorship is not determinative of coverage.
1

Accordingly, we conclude that Dennis was a person insured under the policy because he falls
within the purview of section II{a).
__________

1
If appellants' contention were sustained, there would be no actual persons insured to be protected by this
coverage. This would lead to an absurd construction of this insurance agreement. Additionally, the Moors may
not contend that they were not persons insured. Thus, the assignees of their rights against Jefferson are barred
from making this claim of coverage.
........................................
under the policy because he falls within the purview of section II(a).
Waiver of an otherwise applicable exclusion
[Headnote 5]
Appellants alternatively contend that Jefferson waived its right to deny coverage under the automobile
exclusion provision because Jefferson did not designate the persons insured in its 1993 written denial of
coverage. We conclude that Jefferson did not waive its right to assert this automobile exclusion by failing to
define persons insured in its letter denying coverage.
[Headnote 6]
In Intel Corp. v. Hartford Accident & Indemnity Co., 952 F.2d 1551, 1561 (9th Cir. 1991), the Ninth Circuit
Court of Appeals held that an insurer did not waive its right to rely on a different policy exclusion because the
insurer informed its insured that the pollution exclusion, a standard and unambiguous exclusion, was
applicable. In its reasoning, the Intel court clarified the decision in McLaughlin v. Connecticut General Life
Insurance Co., 565 F. Supp. 434 (N.D. Cal. 1983),
2
in stating that waiver applies only in instances where the
insurer engaged in misconduct, such as sandbagging or failing to investigate a claim, or where the insured
relied on an insurer's misrepresentation to his detriment. 952 F.2d at 1559-60. We agree with the Intel court that
an insurer does not waive its right to assert an exclusion where it has provided its insured with adequate notice of
an unambiguous exclusion.
In the present case, like the insurer in Intel, Jefferson promptly informed the Moors that it was denying
coverage based on exclusion (b)a standard and unambiguous automobile exclusion provision common to
general liability policies. Although Jefferson's 1993 letter denying coverage did not specifically identify the
persons insured for purposes of exclusion (b), we cannot say that such failure misled appellants or was an
attempt by Jefferson to mislead them. We conclude that the Moors were not prejudiced by Jefferson's failure to
define the persons insured language in its 1993 letter because this definition could be readily ascertained from
a layman's reading of section II(a) of the policy.
Because the Moors were clearly on notice that Jefferson was relying on the automobile exclusion
provision of the policy, we conclude that Jefferson did not waive its right to exclude
coverage based upon exclusion {b) of the policy.
__________

2
In McLaughlin, the court held that where an insurer relies on a specified ground for denying liability, it
may not thereafter deny liability on another ground if . . . a reasonable investigation would have revealed the
basis. 565 F. Supp. at 452 (citing Stone v. Waters, 483 S.W.2d 639 (Mo. Ct. App. 1972)). In so doing, the
court reasoned that an insurer has a duty of good faith that requires it to fully inform the insured of its basis for
denial of coverage. See id.
........................................
relying on the automobile exclusion provision of the policy, we conclude that Jefferson did not waive its right to
exclude coverage based upon exclusion (b) of the policy.
CONCLUSION
We conclude that the district court did not err in granting Jefferson's motion for summary judgment because
losses arising from automobile accidents were excluded under exclusion (b) of the policy. Accordingly, we
affirm the order and judgment of the district court.
____________
116 Nev. 598, 598 (2000) Evans v. Dean Witter Reynolds, Inc.
MICHAEL EVANS, as Special Administrator of the ESTATE OF ELFREDA A. GARDNER,
Appellant/Cross-Respondent, v. DEAN WITTER REYNOLDS, INC., a Foreign Corporation; and
WARREN HOUSE, Respondents/Cross-Appellants.
No. 30843
August 18, 2000 5 P.3d 1043
Appeal and cross-appeal from a judgment of the district court, pursuant to a jury verdict, in an action for
conspiracy to convert personal and real property. Ninth Judicial District Court, Douglas County; Michael R.
Griffin, Judge.
Deceased client's estate brought conversion action against stock broker and brokerage firm, based on alleged
unauthorized transfers out of client's accounts. After jury awarded estate $2,600,000.00 in compensatory
damages and awarded $6,000,000.00 in punitive damages against firm and $50,000.00 against broker, the
district court reduced compensatory damages award to zero by applying equitable offsets for settlement payment
estate received from third parties, but allowed punitive damages award to stand. Estate appealed, and defendants
cross-appealed. The supreme court, Maupin, J., held that: (1) defendants, as intentional tortfeasors, were not
entitled to equitable offset for settlement made by joint tortfeasor, overruling Bader v. Cerri, 96 Nev. 352, 609
P.2d 314 (1980); (2) evidence was sufficient to establish that defendants acted maliciously, as required to
support punitive damages award; and (3) award of punitive damages was not excessive.
[Rehearing dismissed November 30, 2000]
Goedert & Michaels, Reno; Terzich & Jackson, Gardnerville, for Appellant/Cross-Respondent.
........................................
Schreck Morris and Kristina Pickering, Las Vegas; Mortimer, Sourwine & Sloane, Ltd., Reno; Sullwold &
Hughes, San Francisco, California, for Respondents/Cross-Appellants.
Questions of law are reviewed de novo.
2. Trover and Conversion.
Conversion is a distinct act of dominion wrongfully exerted over another's personal property in denial of, or inconsistent with his
title or rights therein or in derogation, exclusion, or defiance of such title or rights.
Conversion is an act of general intent, which does not require wrongful intent and is not excused by care, good faith, or lack of
knowledge.
Whether a conversion has occurred is generally a question of fact for the jury.
Evidence that real and personal property had been reconveyed to decedent's estate was inadmissible to show mitigation of damages
in estate's conversion action against stock broker and brokerage firm. Estate sought value of securities at time of alleged conversion
plus interest, and reconveyance was part of settlement of estate's claims against third parties, and only offset value of property taken by
those parties; overruling Bader v. Cerri, 96 Nev. 352, 609 P.2d 314 (1980).
Restitution evidence offered in mitigation of consequential damages attendant to an act of conversion is admissible.
Stock broker and brokerage firm, as intentional tortfeasors in conversion action brought by decedent's estate, were not entitled to
equitable offset for settlement made by joint tortfeasor. NRS 17.225 et seq.
8. Damages; Trover and Conversion.
Intentional tortfeasors, including persons found liable in conversion and persons in conspiracy with them, may not apply credit
from settlements by their joint tortfeasors in reduction of judgments against them arising from the intentional misconduct. NRS 17.225
et seq.
9. Damages.
Contribution among tortfeasors statutes prohibit one intentional tortfeasor from taking advantage of restitution made by another.
NRS 17.225, 17.245, 17.255, 17.305.
10. Damages.
A plaintiff is never entitled to punitive damages as a matter of right. Rather, where the district court has determined that the
conduct at issue is, as a threshold matter, subject to civil punishment, the allowance or denial of exemplary or punitive damages rests
entirely in the discretion of the trier of fact. NRS 42.005(1).
Supreme court will not overturn an award of punitive damages supported by substantial clear and convincing evidence of malice.
NRS 42.005(1).
........................................
Evidence in estate's conversion action was sufficient to support finding that stock broker acted maliciously or with a conscious
disregard of decedent's rights, as required to support award of punitive damages. Broker falsely notarized a full trading authorization
on decedent's precious metals account and allowed decedent's nephew to transfer stock out of her active asset account after her death,
despite policy of brokerage firm requiring him to freeze the account. NRS 42.005(1).
Although brokerage firm did not specifically object to language of vicarious liability instruction and failed to proffer alternate
theory of punitive liability based on a complicity theory in conversion action brought against firm and stock broker, it preserved for
review issue of whether there was substantial evidence in support of punitive damages claim based on malice and vicarious liability
theory given at trial, where it generally objected to the giving of any punitive damage instruction.
Evidence in estate's conversion action was sufficient to support finding that brokerage firm was vicariously liable for the malicious
acts of stock broker and branch manager, as required to support award of punitive damages. Manager acted within scope of his
authority when he participated in false notarization of full trading authorization on decedent's precious metals account, and broker
acted within scope of his authority as manager of decedent's active asset account when he allowed decedent's nephew to transfer stock
out of account after her death. NRS 42.005(1).
15. Damages.
In determining whether a punitive damages award is excessive, supreme court considers numerous factors, including the
defendant's financial position, culpability, and the extent to which this culpability offends one's sense of justice.
16. Damages.
In determining whether a punitive damages award is excessive, supreme court considers the gravity of the injury suffered by the
plaintiff and the means necessary to deter future similar conduct.
Award of $6,000,000.00 in punitive damages against brokerage firm and $50,000.00 against stock broker was not excessive in
conversion action brought by estate of deceased client. Punitive damages award was less than three times the compensatory damages
award, awards made up a relatively small portion of the defendants' net worths, and there was substantial evidence of misconduct,
which resulted in substantial depletion of multi-million-dollar estate of mentally and physically incompetent client. NRS 42.005.
18. Damages.
Award in statute limiting amount of punitive damages to three times the compensatory damage award refers to an award of
actual damages by the jury, not the net award calculated after equitable offsets. NRS 42.005(1).
19. Interest.
Post-judgment interest should accrue on an award for punitive damages to compensate the plaintiff for the loss of the use of the
money awarded in the judgment until paid.
........................................
OPINION
SUMMARY
The estate of Elfreda Gardner (the Estate) obtained a favorable jury verdict against Dean Witter
Reynolds, Inc. and Warren House, a stockbroker and senior vice president of Dean Witter, based upon a
theory of conspiracy to commit conversion of securities.
The jury awarded compensatory damages in the amount of $2,600,000.00, jointly and severally, against
Dean Witter and House, and rendered separate punitive damage awards against Dean Witter and House in
the respective amounts of $6,000,000.00 and $50,000.00. The district court, however, reduced the
compensatory damage award to zero by applying equitable offsets for settlement payments received by the
Estate from third parties. Notwithstanding the elimination of the compensatory damage verdict through the
offsets, the trial court let the punitive damage awards stand.
On appeal, the Estate makes several claims of error by the district court including: (1) improper
limitation of the scope of the conversion claim; (2) improper admission into evidence of restitution made by
third parties in connection with pretrial settlements that resulted in a reduced jury award; (3) improper
imposition of equitable offsets against the jury award ultimately rendered; and (4) failure to award
post-judgment interest on the punitive damage awards.
On cross-appeal, Dean Witter and House contend that the portion of the judgment awarding punitive
damages should be reversed in its entirety because: (1) there was no evidence of malice; (2) the punitive
damage awards were excessive; and (3) the reduction of the compensatory damages to zero mandates that the
punitive damage awards should be set aside as a matter of law. Dean Witter separately argues that proof
elicited at trial was insufficient to sustain vicarious imposition of punitive damages against it.
We conclude the district court erred in admitting evidence relating to restitution by third parties and in
applying post-verdict equitable offsets. Thus, we reverse that portion of the district court's judgment
pertaining to compensatory damages and remand this matter for reinstatement of the compensatory damage
award and the issuance of an additur. Finally, we affirm the judgment with respect to the awards of punitive
damages.
........................................
FACTS
Jack Gardner, an attorney licensed in California, managed the legal, business, and personal affairs of his
elderly aunt and uncle, Elfreda and Allen Gardner. These duties were performed pursuant to a personal
employment agreement. Allen and Elfreda ultimately died testate leaving no children.
1

Prior to Allen's death, he established the Allen F. Gardner Trust to provide interest income to Elfreda
during her lifetime and, upon her death, the trust estate was to be gifted to the Gardner heirs (Jack, his two
sisters, and their heirs). Jack Gardner and Pioneer Citizens Bank were co-trustees of the trust. Allen
predeceased Elfreda and, at the time of his death, the Allen F. Gardner Trust assets exceeded $8,000,000.00.
Elfreda's Last Will and Testament left all of her real and personal property to Jack and his wife, Sue Gardner,
except for money and securities which were bequeathed to Elfreda's nieces and nephews (the Stiegler heirs).
After Allen's death, Elfreda lived alone. Ultimately, she became dependent upon nursing assistance for all of
the activities of daily living. Although House testified that Elfreda was able to express concerns about the
management of her financial affairs, one of her medical providers testified that her mental and physical
condition was in a state of continued deterioration and that she ultimately became mentally incompetent and
physically disabled.
On October 11, 1989, Jack Gardner removed stock certificates held in Elfreda's name from a First
Interstate Bank safe deposit box, which was held jointly by Elfreda and Jack Gardner. Thereafter, Jack
deposited the certificates with Dean Witter into an active asset account
2
for registration in Dean Witter's street
name.
3
Appellants allege that the value of the stock certificates at the time of the deposit exceeded
$8,000,000.00. The valuation at that time was largely uncontested at trial.
Donald Brooks, manager of Dean Witter's Stateline office, testified that on October 13, 1989, he and Jack
Gardner witnessed Elfreda affix her signature to all of the opening account documents. Brooks also testified
that he notarized Elfreda's signatures. However, two handwriting experts testified at trial that the signatures
were not those of Elfreda, and that three different inks were used to execute the documents.
__________

1
Allen F. Gardner died in 1985. Elfreda Gardner died in 1993.

2
An active asset account is a checking account into which stock dividends and other proceeds can be
deposited; it authorizes the signatories to write checks on the margin, using the client's stock as security.

3
The street name designation involves registration of client securities in Dean Witter's name, thus
allowing the firm to sell or transfer stock held for the client. Transactions are then memorialized via monthly
statements.
........................................
One of the documents allegedly signed by Elfreda was a full trading authorization, which gave Jack Gardner
authority over the account, including the power to sell corporate securities. Jack wrote approximately
$1,600,000.00 in checks from the active asset account to purchase real and personal property, including
Hummel figurines, model trains, furniture, gold coins, and real property in Douglas County, Nevada. Because
Elfreda's will left her real and personal property to Jack and Sue Gardner, and because all monies and securities
were bequeathed to the Stiegler heirs, these transactions substantially depleted the portion of the estate gifted in
Elfreda's will to the Stiegler heirs. Most of the assets purchased with these proceeds were then held jointly in the
name of Mr. and Mrs. Jack Gardner.
Jack also used the original full trading authorization to transfer United Airlines stock, the primary asset in the
account, to his own accounts at Dean Witter and to those of his friends, with a total of 8,488 shares being
distributed. He also distributed 3,365 of the shares to the Stiegler heirs. After Elfreda's death, Jack continued to
transfer assets from Elfreda's account into his personal account. Dean Witter allowed these transfers, despite its
policy of freezing accounts upon the death of a client. Further, after Elfreda's death, Dean Witter sold stock
certificates from the account to pay off $903,508.52 in margin obligations incurred by Jack in connection with
the active asset account in Elfreda's name. House was the account executive who serviced this account.
In addition to the active asset account, Jack opened a separate precious metal account with Dean Witter in
Elfreda's name. It is uncontested that Jack forged the signatures required to open this account. House admitted
notarizing the false signatures. The account was used to transfer gold coins to Jack Gardner at his California
address.
After Jack Gardner's defalcations were identified, the Estate filed an action seeking damages against the
Estate of Jack Gardner,
4
Sue Gardner, Pioneer Citizens Bank, trust counsel, Dean Witter, and House. The
lawsuit alleged three separate loss categories, to wit: (1) losses incurred as a result of the handling of the Allen F.
Gardner Trust, of which Elfreda was the income beneficiary during her lifetime; (2) losses stemming from the
conversion of assets from Elfreda's personal bank account at First Interstate Bank (FIB); and (3) losses
sustained in connection with diversions from the Dean Witter accounts. The complaint alleged breaches of
fiduciary duty, conversion before letters, conversion, embezzlement, civil conspiracy, and racketeering with
regard to each separate loss category.
__________

4
Jack Gardner died prior to the trial of this matter.
........................................
regard to each separate loss category. Although the Estate's pleadings alleged that all of the defendants named in
connection with all three categories of loss were jointly and severally liable, the first two loss categories did not
involve Dean Witter. Claims in connection with the third category were brought against the Estate of Jack
Gardner, Sue Gardner, Dean Witter, and House.
Prior to trial, Pioneer Citizens Bank and trust counsel each paid approximately $100,000.00 to settle, in part,
the separate claims against the Allen F. Gardner Trust (the Allen F. Gardner Trust Settlement).
Sue Gardner, individually and as executrix of the Estate of Jack Gardner, entered into a separate settlement
agreement with the Estate of Elfreda Gardner in exchange for cash, real estate, and personal property valued by
the parties in excess of $4,000,000.00 (the Jack Gardner Settlement). The Jack Gardner Settlement allocated
net proceeds, after deductions of $400,000.00 for attorney's fees, as follows: seventy-five percent for the
depletion of Elfreda's personal accounts (assets on deposit with FIB and Dean Witter); and twenty-five percent
for monies Elfreda should have received from the Allen F. Gardner Trust. There was no specific breakdown in
the settlement agreement allocating credit between the FIB and Dean Witter losses. Thereafter, the Estate
proceeded to trial against Dean Witter and House.
Prior to trial, the district court ruled on motions in limine brought to exclude evidence of the prior
settlements. The district court granted the motion in part, prohibiting admission of evidence that real and
personal property was returned by virtue of a legal settlement. The district court, however, allowed Dean Witter
and House to introduce evidence that personal and real property, valued at approximately $1,570,858.00, was
returned, including evidence that the Hummel figurines, model trains, and furniture were returned to the estate,
along with several parcels of real property. The district court also allowed Sue Gardner to testify that the value
of the real property deeded back to the estate exceeded the original purchase price of the parcels.
At trial, the district court limited the scope of the conversion claim by determining, as a matter of law, the
time period within which the alleged conversion could have taken place. Specifically, the district court ruled that
Dean Witter could not have converted the stock at the time that Jack Gardner removed the stock certificates
from the FIB safe-deposit box and deposited them into the Dean Witter active asset account. Thus, the district
court ruled that Dean Witter and House could only have been parties to the conversion at the time the stock was
transferred from the active asset account. Because the corporate stock substantially decreased in value between
the time of the deposit into the active asset account and the time of Jack Gardner's transfer
transactions,
........................................
account and the time of Jack Gardner's transfer transactions, the district court restricted the compensatory
damage claim to $4,173,079.00, including interest.
5
(Dean Witter and House conceded that certain
irregularities perpetrated by Jack Gardner occurred, and that the value of the securities lost by virtue of the Jack
Gardner transactions amounted to $4,173,079.00, including interest. However, Dean Witter and House
vehemently denied participation in the conversion of securities or a conspiracy to convert securities from
Elfreda's accounts.)
At the conclusion of the Estate's case-in-chief, the district court dismissed all of the claims, pursuant to
NRCP 41(b), except the causes of action alleging conversion and conspiracy to convert. The court further ruled
that there was insufficient evidence as a matter of law to support an award of punitive damages based upon fraud
or oppression, but left the question of malice for decision by the jury.
The jury returned a verdict for the defense on the conversion claims but, as previously noted, returned a
verdict of $2,600,000.00 in compensatory damages against Dean Witter and House jointly and severally for
conspiracy to commit conversion. As also noted, the jury, in bifurcated proceedings, ultimately awarded the
Estate punitive damages against Dean Witter in the amount of $6,000,000.00 and against House in the amount
$50,000.00.
Thereafter, following post-trial motions by both parties, the district court reduced the compensatory damage
award to zero, applying offsets for the entirety of the Jack Gardner and Allen F. Gardner Trust Settlements. The
offsets were ordered notwithstanding the Estate's argument that offsets in any amount were barred under NRS
17.225 et seq., and affidavit evidence presented by the Estate that: (1) the settlement offsets that could be legally
applied in connection with the Jack Gardner Settlement, assuming the offsets were legally appropriate,
6
could
not exceed $480,659.50; and (2) the payors under the Allen F. Gardner Trust Settlement were not joint
tortfeasors with Dean Witter, but were subject to liability for an alleged separate tort of conversion from the
separate Allen F. Gardner Trust.
__________

5
As noted, the value of the securities at the time of the creation of the accounts approximated $8,000,000.00.
The $4,173,079.00 figure was based upon the value of the securities at the time of ultimate transfer. Thus, the
district court's rulings had the effect of substantially reducing the Estate's claim of damages.

6
The Estate's primary argument in district court was that NRS 17.225 barred the imposition of any offsets. It
argued in the alternative that the offsets should have been limited. On appeal, the Estate takes a reverse
approach, to wit: the argument of total illegality of the offsets is made in the alternative to the argument that the
offsets should have been limited.
........................................
The punitive damage awards were reduced to judgment, even though the equitable offsets reduced the
compensatory award to zero dollars. The district court refused the Estate's request for post-judgment interest on
the punitive damages award pursuant to Ainsworth v. Combined Insurance Company, 105 Nev. 237, 774 P.2d
1003 (1989).
DISCUSSION
Standard of review
[Headnote 1]
Questions of law are reviewed de novo. SIIS v. United Exposition Services Co., 109 Nev. 28, 30, 846 P.2d
294, 295 (1993). Here, the district court was required to resolve numerous issues in the context of long-existing
ambiguities in our decisional and statutory law. These issues include when and how an act of conversion can be
committed, the rights governing litigation between and among multiple parties in the context of claims alleging
intentional misconduct, and the relationships between recoveries of compensatory and punitive damages. In
reversing the trial court, we take this opportunity to clarify these ambiguities, with which the district court
understandably encountered considerable difficulty.
The Estate primarily seeks reinstatement of the $2,600,000.00 compensatory damage award, which was
reduced to zero via the settlement offsets. The Estate also requests an additur to account for the reduction of the
verdict by the jury caused by the admission of the restitution evidence. We will therefore address the Estate's
contentions as they relate to the primary relief sought in this appeal.
Because the Estate seeks the clarification and application of doctrine in the context of claims of conversion
and conspiracy to convert, a brief review of the tort of conversion under Nevada law is necessary.
[Headnotes 2-4]
Conversion is a distinct act of dominion wrongfully exerted over another's personal property in denial of,
or inconsistent with his title or rights therein or in derogation, exclusion, or defiance of such title or rights.
Wantz v. Redfield, 74 Nev. 196, 198, 326 P.2d 413, 414 (1958). Further, conversion is an act of general intent,
which does not require wrongful intent and is not excused by care, good faith, or lack of knowledge. See id.;
Bader v. Cerri, 96 Nev. 352, 357 n.1, 609 P.2d 314, 317 n.1 (1980). Whether a conversion has occurred is
generally a question of fact for the jury. See Bader, 96 Nev. at 356, 609 P.2d at 317.
7

__________

7
As noted, the district court limited the scope of the Estate's conversion claim by informing the jury that Dean
Witter's acceptance of Jack Gardner's
........................................
Prior settlements
[Headnote 5]
The district court allowed Dean Witter to present evidence demonstrating the reconveyance of three parcels
of real property to Elfreda's estate pursuant to the Jack Gardner Settlement. Dean Witter was also allowed,
through the testimony of Sue Gardner, to inform the jury that the property returned to the Estate was worth
more at the time it was deeded back than when it was purchased. In sum, the district court permitted evidence of
the return of certain real and personal property totaling $1,570,858.00, which included the Hummel figurines,
model trains, furniture, gold coins, and money spent by Jack on the acquisition of various pieces of real
property.
Dean Witter contends that the restitution evidence was relevant to mitigate the damages sustained by the
Estate. In making this contention, Dean Witter refers us to our statement in Bader that [t]he return of the
property converted does not nullify the conversion[, but can] serve to mitigate damages. Bader, 96 Nev. at 356,
609 P.2d at 317. Alternatively, Dean Witter asserts that if the district court erred in admitting this evidence, any
error was harmless.
8
We disagree.
Although the fact that the Estate had settled its liability claims against Jack and Sue Gardner was not
disclosed to the jury, the district court admitted evidence that real and personal property had been returned to the
Estate. It did so under Bader's statement that, in a conversion case, damages may be reduced or mitigated by
payments or return of the converted property by the tortfeasor. The district court's ruling on the admissibility of
the restitution by Jack and Sue Gardner is problematic because of the context within which such evidence is
admissible under Bader, and because of our subsequent ruling in Moore v. Bannen, 106 Nev. 679, 680-81, 799
P.2d 564, 565 (1990).
__________
full trading authorization was not a conversion as a matter of law. This ruling had the net effect of reducing the
damage claim based upon the value of the securities at the time of their transfers from the Dean Witter account,
rather than their value at the time the account was created. As also noted, the value of the securities diminished
almost by half during the period between the creation of the account and the ultimate transfers effected at the
instance of Jack Gardner. We do not reach the issue of the timing of the conversion because the Estate primarily
seeks reinstatement of the compensatory damage award plus additur.

8
The jury was not informed that Sue Gardner, Jack Gardner's widow, was later given ownership of the
Hummels, model trains, furniture and other personal property after they had been recovered and inventoried.
Thus, the mitigation evidence was placed before the jury on a fictive basis as a precaution to prevent the jury
from inferring that the mitigation evidence was actually a settlement payment.
........................................
Our statement in Bader that evidence of restitution is admissible for the purpose of showing mitigation of
damages was made in reference to a matter where a single defendant charged with civil conversion had restored
the property to the alleged victim of the conversion. The restitution in Bader was not, as here, made by a third
party. Also, the evidence of mitigation in Bader, the restoration or release of a cattle brand back to the original
owner, was relevant to show that consequential damages, i.e., loss of use stemming from the original conversion,
were not as great as alleged. Therefore, return of converted property would only mitigate consequential
damages attendant to the loss of use of the converted property.
Here, the sole measure of damages sought by the Estate was the value of the securities at the time of
conversion plus interest. The Estate made no claim for consequential damages other than loss of interest. Here,
the district court, rather than the jury, assessed the interest to which the Estate was entitled. We therefore
conclude that the district court erred in admitting evidence of the conveyance and return of personal and real
property because this restitution did nothing to mitigate consequential damages; rather, it allowed the jury to
consider evidence of the value of property that was returned as an offset to the value of the property taken, i.e.,
non-consequential damages. This, we also conclude, runs afoul of our ruling in Moore v. Bannen.
[Headnote 6]
In Moore, we held that, where there has been a settlement between a plaintiff and one of several defendants,
the jury may not be informed as to either the fact of the settlement or the sum paid. Moore, 106 Nev. at 680-81,
799 P.2d at 566 (emphasis added). Consistent with our decision in Moore, we now conclude that evidence of a
portion of the consideration paid in settlement by third parties creates the same potential for confusion and
speculation in the minds of the jurors as does evidence of the total consideration paid. We therefore hold that the
restitution evidence was admitted below in error. Thus, to the extent that Bader would allow admission of such
evidence in mitigation of non-consequential damages, it is hereby expressly overruled.
9

An examination of the record clearly shows that the mitigation evidence unduly influenced the outcome.
Again, the court's ruling limited the extent of damages to $4,173,079.00. The jury then awarded compensatory
damages in the sum of $2,600,000.00. The net result was a compensatory damage verdict in an amount
substantially less than the minimum damages actually sustained by the Estate.
__________

9
Under Bader, restitution evidence offered in mitigation of consequential damages attendant to an act of
conversion remains admissible.
........................................
Accordingly, we conclude the district court erred in admitting the restitution evidence.
Viability of the equitable offsets
[Headnote 7]
On appeal, the Estate argues that equitable offsets based upon the restitution payments should have been
limited to payments made in connection with the Dean Witter losses, not losses in connection with the Allen F.
Gardner Trust and the FIB accounts.
10
In addition to its claim of error that the equitable offsets should have
been limited, the Estate contends in the alternative that any offset based upon restitution settlements made in
response to the claims of intentional misconduct was improper under NRS 17.225 et seq., the Nevada
Contribution Among Tortfeasors statute.
Whether offsets should be permitted in any amount in the context of joint liability for intentional misconduct
is the subject of a nationwide split of authority. Some courts have prohibited offsets under contribution statutes
similar to those enacted by the Nevada legislature. See Klosterman v. Fussner, 651 N.E.2d 64, 68 (Ohio Ct. App.
1994) (likening the imposition of equitable credit to the collateral source rule). But see Hampton v. Safeway
Sanitation Services, Inc., 725 S.W.2d 605 (Mo. Ct. App. 1987) (offsets applied in context of conversion claim
under contribution statute). Other courts have split, as a matter of public policy, over whether general
principles of equity prevent parties with unclean hands from obtaining equitable relief by way of offset. See
generally Income Investors v. Shelton, 101 P.2d 973, 974 (Wa. 1940) (discussing the doctrine of unclean
hands). In response, courts applying offsets have concluded that the potential for double recovery by the
claimant mandates that such offsets be imposed, even in the context of intentional misconduct of the party
seeking relief. See Krusi v. Bear, Stearns & Co., 192 Cal. Rptr. 793, 798 (Ct. App. 1983) (conversion of
securities by two stockbrokers).
[Headnote 8]
We conclude that, as a matter of law, intentional tortfeasors, including persons found liable in
conversion and persons in conspiracy with them,
__________

10
In post-trial motions concerning the extent of the offsets, and thus, the net award from the verdict, the
Estate provided affidavits memorializing allocations to the Allen F. Gardner Trust losses and explaining the
allocations between the Dean Witter and FIB losses. The district court, without holding an evidentiary hearing,
assessed the restitution payments in total, thus reducing the net verdict to zero. We harbor some concerns with
regard to the application of offsets in connection with settlements of claims not involving Dean Witter. See NRS
17.225(1); cf. Levi v. Montgomery, 120 N.W.2d 383 (N.D. 1963). However, we choose not to reach the issue in
the context of this case because of our decision that the contribution statute, NRS 17.225 et seq., bars any right
of equitable offset in favor of Dean Witter or House.
........................................
including persons found liable in conversion and persons in conspiracy with them, may not apply credit from
settlements by their joint tortfeasors (here, Jack Gardner) in reduction of judgments against them arising from
the intentional misconduct. See Harriss v. Elliott, 565 N.E.2d 1041, 1044 (Ill. App. Ct. 1991).
First, and fundamentally, payments made in settlement of an intentional tort claim and applied to reduce
another tortfeasor's payment of the claim by one of the joint tortfeasors would constitute equitable relief by way
of an equitable setoff. Under the maxim that one seeking equity may not do so with unclean hands, an
intentional tortfeasor by definition seeks such relief from a position of ineligibility for it. See Shelton, 101 P.2d
at 974.
Secondly, we conclude that NRS 17.225 prohibits the application of such credit.
11
The act provides that
where two or more persons become jointly or severally liable in tort for the same injury to person or property . .
. , there is a right of contribution among them. NRS 17.225(1). Section (a) of NRS 17.245(1) provides that
payments in settlement by one of two or more persons liable for the same injury does not discharge the
liability of non-settling parties unless the terms of the settlement so provide. However, the payments reduce the
claim against the others to the extent . . . of the consideration paid for it. Id. While NRS 17.245(1) seems to
mandate some of the credit sought by Dean Witter and applied by the district court, NRS 17.255 specifically
provides that no right of contribution exists in favor of any tortfeasor who has intentionally caused or contributed
to the injury sustained.
12

Reading NRS 17.225, NRS 17.245, NRS 17.255, and NRS 17.305 together, the prohibition against
contribution in favor of persons liable in tort for intentional misconduct would make no sense if intentional
tortfeasors were entitled to an equitable offset for settlements made by joint offenders. This is because the credit
under NRS 17.245(1) would indirectly provide the non-settling intentional tortfeasor the same
protection against overpayment that a direct right of contribution would provide.
__________

11
At common law, there was no contribution among joint tortfeasors. W. Page Keeton et al., Prosser and
Keeton on the Law of Torts 50 (5th ed. 1984). This rule is deeply rooted in our national jurisprudential history
and developed because the word tort was, in the non-modern context, a descriptive term for intentional
misconduct amounting to a civil wrong, not negligent misconduct. Over time, numerous states have adopted
either by court rule or by statute variant forms of contribution recovery. These contribution constructs, which
apply to non-intentional wrongs, come from the recognition that non-negligent torts committed by multiple
offenders do not evoke the same policy that justifies the prohibition of credit for complete or partial
reimbursement by third parties in the intentional tort context. See 2 Speiser, Krause and Gans, American Law of
Torts, 3:15 (1983).

12
The traditional restrictions against contribution by intentional wrongdoers that existed at common law are
therefore retained. See supra, n.12.
........................................
intentional tortfeasor the same protection against overpayment that a direct right of contribution would provide.
Thus, the contribution statute renders any reduction in the verdict, regardless of its source, invalid. Accordingly,
the district court erred in its admission of mitigation evidence and in the imposition of postverdict equitable
setoffs.
Our ruling on this issue has further significance to the dictum in Bader regarding restitution as evidence in
mitigation of conversion damages. Not only is such evidence inadmissible under Moore, restitution payments by
third parties cannot be utilized as an equitable offset to the verdict. Thus, insofar as Bader implies that a
non-settling defendant in a conversion case may seek credit for third-party settlements post-verdict, it is
expressly overruled.
13

[Headnote 9]
We conclude that the legislative statement of policy in the Nevada contribution statutes prohibits one
intentional tortfeasor from taking advantage of restitution made by another. To the extent that this long-standing
public policy should to be overturned, we defer to the Nevada State Legislature.
Based upon our conclusions that the restitution evidence was inadmissible and that the verdict rendered
should not have been reduced via the equitable offsets, we remand this matter for reinstatement of the verdict
rendered in the amount of $2,600,000.00, and for additur to increase the recovery of compensatory damages to a
total of $4,173,079.00, plus interest.
14

Punitive damages
Punitive damages are not designed to compensate a party but are awarded for the sake of example and by
way of punishing the defendant. NRS 42.005(1). With respect to punitive damages, the district court instructed
the jury that it could make such an award only upon a finding of malice. On cross-appeal, Dean Witter and
House contend that: (1) malice was never proven; (2) the punitive damage award was excessive;
__________

13
In Bader, the mitigation evidence involved restitution by the defendant accused, not another separately
accused defendant. Clearly, a defendant in any intentional tort case is entitled to credit for payments made on his
own behalf. To this extent, Bader retains some limited vitality on the issue of restitution payments made by a
tortfeasor.
We note that some acts of conversion do not involve wrongful intent. In such a case, there is no reason not to
impose equitable relief by way of offsets for third-party settlements. In this case, however, the jury found malice.
Thus, equitable relief based upon third-party payments to the claimant is unavailable.

14
This total figure is based upon the value of the securities at the time of the transfers effected at the request
of Jack Gardner. As noted, Dean Witter and House concede that the value of the securities at that time was
$4,173,079.00.
........................................
the punitive damage award was excessive; and (3) the reduction of the compensatory damages to zero mandates
that the punitive damage awards should be set aside as a matter of law. We will address each contention in turn.
A. Proof of malice
[Headnotes 10, 11]
Nevada law requires clear and convincing evidence of malice before punitive damages may be recovered.
NRS 42.005(1). A plaintiff is never entitled to punitive damages as a matter of right.' Dillard Department
Stores v. Beckwith, 115 Nev. 372, 380, 989 P.2d 882, 887 (1999) (quoting Ramada Inns v. Sharp, 101 Nev. 824,
826, 711 P.2d 1, 2 (1985)). Rather, where the district court has determined that the conduct at issue is, as a
threshold matter, subject to civil punishment, the allowance or denial of exemplary or punitive damages rests
entirely in the discretion of the trier of fact. See Smith's Food & Drug Cntrs. v. Bellegarde, 114 Nev. 602, 606,
958 P.2d 1208, 1211 (1998); Ramada Inns v. Sharp, 101 Nev. 824, 826, 711 P.2d 1, 2 (1985). Accordingly, this
court will not overturn an award of punitive damages supported by substantial clear and convincing evidence of
malice.
[Headnote 12]
NRS 42.001(3) defines express or implied malice as conduct which is intended to injure a person or
despicable conduct which is engaged in with a conscious disregard of the rights or safety of others. There is
substantial evidence in the record to support the jury's finding that Dean Witter and House acted maliciously or
with a conscious disregard of Elfreda's rights.
House testified that he falsely notarized a full trading authorization on the precious metals account and that
he allowed Jack to transfer stock out of Elfreda's account after her death, despite a Dean Witter policy requiring
House to freeze her account. Additionally, there was evidence presented that would have supported an inference
that House or Brooks either forged Elfreda's active asset account documents or knew that they were forged.
Indeed, although House and Brooks testified that Elfreda signed these opening documents granting Jack control
over her account, two handwriting experts concluded that three different pens were used to sign these documents
and that the signatures were not Elfreda's.
[Headnote 13]
With respect to the jury instruction given on Dean Witter's punitive liability, we first address the threshold
matter of whether Dean Witter preserved this issue on appeal. The Estate contends that Dean Witter waived its
right to appeal its liability for punitive damages by failing to object to the vicarious liability
instruction that was given to the jury.
........................................
tive damages by failing to object to the vicarious liability instruction that was given to the jury. We agree, in
part, with the Estate's contention.
A review of the record reveals that Dean Witter did not specifically object to the language of the vicarious
liability instruction and failed to proffer the alternate theory of punitive liability based on a complicity theory.
See, e.g., Etcheverry v. State, 107 Nev. 782, 784-85, 821 P.2d 350, 351 (1991) (holding that the failure to object
or request a special instruction precludes appellate review).
However, at trial, Dean Witter did generally object to the giving of any punitive damage instruction on the
grounds that it was unconstitutional and not supported by the evidence. In so doing, Dean Witter preserved the
right to argue on appeal that there was not substantial evidence in support of the punitive damage claim based on
the theory given at trial, namely malice and vicarious liability. The jury was instructed on a vicarious liability
theory via jury instruction 15:
Dean Witter Reynolds, Inc., is a corporation and as such can act only through its officers and
employees. Any act or omission of an officer or employee within the scope of authority or employment is
in the law the act or omission of such corporation.
This instruction properly set forth a theory of punitive liability under Nevada law as it existed at the time of
trial.
15
See Ramada, 101 Nev. at 826, 711 P.2d at 2 (implying that either a vicarious or complicity theory of
principal liability was appropriate). We therefore will review this matter to determine whether there was
substantial evidence of vicarious liability.
[Headnote 14]
In the instant case, we conclude that there was substantial evidence to support a finding that Dean Witter was
vicariously liable for the malicious acts of Brooks and House. First, Brooks was in charge of the daily affairs of
the Stateline branch, held both the branch office manager license and a registered principal license, and was
acting within the scope of his authority when he participated in the notarization of the full trading authorization.
Second, House was senior vice president of Dean Witter and acted in the scope of authority
as a manager of Elfreda's account.
__________

15
We note that in 1998, after the trial of this matter, we rejected the application of vicarious, punitive
liability and instead adopted the Restatement (Second) of Torts complicity theory of punitive liability. See
Bellegarde, 114 Nev. at 610-11, 958 P.2d at 1214. We also note that, given the state of our punitive damage law
as of the trial of this case, there was no ground upon which the district court could reject instructions based upon
either theory. We conclude, however, based upon the analysis below, that a review of this case under a
complicity theory of liability would not change the result.
........................................
House was senior vice president of Dean Witter and acted in the scope of authority as a manager of Elfreda's
account.
Accordingly, in interpreting the evidence in a light most favorable to the Estate, we conclude that there was
clear and convincing evidence in the record to support the jury's finding that Dean Witter and House were liable
for maliciously conspiring with Jack Gardner to convert Elfreda's securities. Dean Witter and House contend that
their acts were negligent at best, and that they were only complying with the requests by a person with authority
to act on behalf of Elfreda Gardner. However, the record supports a finding that House and/or Brooks either
forged or knew that Jack Gardner forged Elfreda's signature on the active asset account documents, thus giving
him the power to transfer several million dollars worth of Elfreda's assets from the active asset account.
B. Excessiveness as a matter of law
NRS 42.005(1)(a) limits the amount of punitive damages to three times the compensatory damages in
instances where such damages are equal to or exceed $100,000.00.
[Headnotes 15, 16]
Further, in determining whether a punitive damages award is excessive, we consider numerous factors
including the defendant's financial position, culpability, and the extent to which this culpability offends one's
sense of justice. See Wohlers v. Bartgis, 114 Nev. 1249, 1267, 969 P.2d 949, 962 (1998) (citing Ace Truck v.
Kahn, 103 Nev. 503, 509-10, 746 P.2d 132, 136-37 (1987)). Finally, this court considers the gravity of the
injury suffered by the plaintiff and the means necessary to deter future similar conduct. See id.
[Headnote 17]
In the case at bar, we see nothing excessive about the $6,000,000.00 punitive award against Dean Witter.
These awards are well within the statutory parameters of NRS 42.005, which would have permitted an award not
to exceed $7,800,000.00, three times the compensatory damages award of $2,600,000.00. Further, these awards
did not annihilate either Dean Witter or House; both awards constituted a relatively small portion of the net
worths of these parties. Finally, there was substantial evidence, as discussed above, that proved misconduct
resulting in the substantial depletion of the multi-million-dollar estate of their mentally and physically
incompetent client.
16

__________

16
We disagree with Dean Witter and House that their conduct was analogous to that of the corporate
defendant in BMW v. Gore, 517 U.S. 559 (1996).
........................................
C. Application of equitable offsets
The district court applied equitable offsets to the compensatory damage award ultimately reducing the
award to zero. Because punitive damages cannot be awarded unless compensatory damages are also awarded,
17
Dean Witter contends that the offsets removed the condition precedent to an award of punitive damages, to
wit: an award of compensatory damages. We disagree.
[Headnote 18]
First, our ruling with regard to the equitable offsets restores the compensatory damage award. Second,
we conclude that the term award in NRS 42.005 refers to an award of actual damages by the jury, not the net
award calculated after equitable offsets. See Exxon Corp. v. Yarema, 516 A.2d 990 (Md. Ct. Spec. App. 1986).
This is based upon the public policy consideration that a tortfeasor legally subject to civil punishment via
punitive damages should not escape sanction, or have that sanction reduced, because of the actions of a third
party. Thus, restitution made by a third party is irrelevant to whether a defendant's conduct merits punishment.
In the instant case, the jury awarded compensatory damages. Thus, appellants satisfied the rule requiring
proof of actual loss before punitive damages may be recovered.
Post-judgment interest
[Headnote 19]
Elfreda's estate is entitled to post-judgment interest on the punitive damage award. We recently modified
our previous ruling in Ainsworth v. Combined Insurance Company, 104 Nev. 587, 763 P.2d 673 (1988), and
determined that post-judgment interest should accrue on an award for punitive damages, to compensate the
plaintiff for the loss of the use of the money awarded in the judgment until paid. See Wohlers v. Bartgis, 114
Nev. 1249, 969 P.2d 949 (1998); Powers v. United Servs. Auto. Ass'n, 114 Nev. 690, 962 P.2d 596 (1998),
modified on other grounds, 115 Nev. 38, 979 P.2d 1286 (1999).
CONCLUSION
We conclude that the minimum compensatory damages sustained by the estate was $4,173,079.00 plus
interest, that the evidence of restitution payments was improperly admitted, and that the imposition of equitable
offsets was improper as a matter of law. We therefore reverse that portion of the judgment below pertaining
to compensatory damages and remand this matter to the district court for further
proceedings consistent with this opinion.
__________

17
See Sprouse v. Wentz, 105 Nev. 597, 781 P.2d 1136 (1989); City of Reno v. Silver State Flying Serv., 84
Nev. 170, 438 P.2d 257 (1968); and Novack v. Hoppin, 77 Nev. 33, 359 P.2d 390 (1961).
........................................
taining to compensatory damages and remand this matter to the district court for further proceedings consistent
with this opinion. More particularly, we instruct the district court to amend the judgment via additur to reflect
total compensatory damages sustained in the amount of $4,173,079.00 plus interest. See Drummond v.
Mid-West Growers, 91 Nev. 698, 705, 542 P.2d 198, 203 (1975) (this court has set forth a two-prong test for
additur: (1) whether the damages are clearly inadequate, and (2) whether the case would be a proper one for
granting a motion for a new trial limited to damages). Finally, we affirm that portion of the district court's
judgment awarding punitive damages, and we further instruct the district court to calculate the post-judgment
interest on the award.
____________
116 Nev. 616, 616 (2000) DR Partners v. Bd. of County Comm'rs
DR PARTNERS, a Nevada General Partnership, dba LAS VEGAS REVIEW JOURNAL, Appellant, v. THE
BOARD OF COUNTY COMMISSIONERS OF CLARK COUNTY, NEVADA; YVONNE
ATKINSON GATES, Chairperson; LORRAINE HUNT, ERIN KENNY, MARY J. KINCAID,
MYRNA WILLIAMS, BRUCE WOODBURY and LANCE MALONE, in Their Representative
Capacities; DALE ASKEW, Clark County Manager, in His Representative Capacity, and RANDY
WALKER, Director of Aviation, in His Representative Capacity, Respondents.
No. 31999
August 18, 2000 6 P.3d 465
Appeal from a district court order denying appellant's petition for a writ of mandamus compelling
respondents to disclose Clark County officials' cellular telephone records. Eighth Judicial District Court, Clark
County; Kathy A. Hardcastle, Judge.
Newspaper petitioned for a writ of mandamus to compel the disclosure of billing statements documenting
county officials' use of publicly owned cellular telephones. The district court denied the petition. Newspaper
appealed. The supreme court, Maupin, J., held that: (1) as a matter of first impression, the common-law
deliberative process privilege was inapplicable, and (2) disclosure would not violate the privacy rights of
persons with unlisted telephone numbers that were shown on the billing statements.
Campbell & Williams, Las Vegas, for Appellant.
........................................
Stewart L. Bell, District Attorney, and Mary-Anne Miller, Deputy District Attorney, Clark County, for
Respondents.
JoNell Thomas, Las Vegas, for Amicus Curiae the Nevada Press Association.
1. Records.
The official information privilege for public officers did not protect county officers from newspaper's request under the Public
Records Act for billing statements documenting use of publicly owned cellular telephones by county officers. The newspaper was not
seeking testimony from the public officers, and the officers did not show that any particular public interest would suffer as a result of
full compliance with the request. NRS 49.285, 239.005 et seq.
2. Mandamus.
A writ of mandamus is available to control an arbitrary or capricious exercise of discretion.
3. Mandamus.
A district court's decision to grant or deny a petition for a writ of mandamus is reviewed by the supreme court under an abuse of
discretion standard.
4. Mandamus.
Mandamus was the appropriate procedural remedy to compel county's production, at the request of newspaper, of records
documenting county officials' use of publicly owned cellular telephones. NRS 239.011.
5. Records.
The purpose of the Public Records Act is to ensure the accountability of the government to the public by facilitating public access
to vital information about governmental activities. NRS 239.005 et seq.
6. Records.
Billing statements documenting county officials' use of publicly owned cellular telephones were public records, within meaning
of Public Records Act. NRS 239.005 et seq.
7. Records.
The public official or agency bears the burden under the Public Records Act of establishing the existence of privilege as to public
records, based upon confidentiality. NRS 239.005 et seq.
8. Witnesses.
Privileges, whether creatures of statute or the common law, should be interpreted and applied narrowly.
9. Records.
Unless a statute provides an absolute privilege against disclosure of public records under the Public Records Act, the burden of
establishing the application of a privilege based upon confidentiality can only be satisfied pursuant to a balancing of interests. NRS
239.005 et seq.
10. Records.
Any limitation on the general disclosure requirements of the Public Records Act must be based upon a balancing or weighing of
the interests of non-disclosure against the general policy in favor of open government. NRS 239.010.
11. Witnesses.
The common-law deliberative process privilege permits government decision-makers to engage in the frank exchange of opinions
and recommendations necessary to the formulation of policy without being inhibited by fear of later public
disclosure,
........................................
mendations necessary to the formulation of policy without being inhibited by fear of later public disclosure, and therefore protects
materials or records that reflect a government official's deliberative or decision-making process.
12. Witnesses.
Purely factual matters are not protected under the common-law deliberative process privilege for government officials, unless
inextricably intertwined with the policy-making process.
13. Witnesses.
To qualify for non-disclosure under the common-law deliberative process privilege for government officials, the requested
documents must be both predecisional and deliberative.
14. Witnesses.
To establish that documents were predecisional, as element for the common-law deliberative process privilege for government
officials, the officials had to identify an agency decision or policy to which the documents contributed.
15. Witnesses.
To qualify as part of a deliberative process, as element of the common-law deliberative process privilege for government
officials, the materials must consist of opinions, recommendations, or advice about agency policies.
16. Witnesses.
The names of persons with whom government officials have consulted are not protected from disclosure under a common-law
deliberative process privilege.
17. Records.
The common-law deliberative process privilege for government officials did not preclude disclosure under the Public Records Act
of billing statements documenting county officials' use of publicly owned cellular telephones. The billing statements revealed nothing
that would interfere with any deliberative process of government, and the county officials had not been compelled to conduct business
over the telephone system, for which the billings, as a matter of course, included the local and long distance numbers of the parties to
the telephonic conversations. NRS 239.005 et seq.
18. Records.
The weighing process for the common-law deliberative process privilege for government officials compelled disclosure under the
Public Records Act, to newspaper, of billing statements documenting county officials' use of publicly owned cellular telephones.
County did not show any particularized need for non-disclosure, and the redacted billing statements provided by county, which omitted
the last four digits of every telephone number, prevented the newspaper from determining the extent to which any governmental waste
may have occurred. NRS 239.005 et seq.
19. Witnesses.
Once the agency demonstrates that documents fit within the deliberative process privilege for government officials, the burden
shifts to the party seeking disclosure to demonstrate that its need for the information outweighs the regulatory interest in preventing
disclosure.
20. Records.
Disclosure under the Public Records Act, to newspaper, of billing statements documenting county officials' use of publicly owned
cellular telephones would not violate privacy rights of persons with unlisted telephone numbers that were shown on the
billing statements.
........................................
phone numbers that were shown on the billing statements. There generally was no expectation of privacy, because the act of placing a
cellular call to a private citizen placed the number called within the public domain and members of the public who knowingly placed
calls to government- issued cellular phones knew that public billings would reflect their unlisted telephone numbers, and the unlisted
numbers could be redacted if necessary. NRS 239.005 et seq.
OPINION
The appellant, DR Partners, a Nevada General Partnership, dba Las Vegas Review Journal (the
Newspaper), operates a newspaper of general circulation in Clark County, Nevada. The respondents
are the Clark County Board of Commissioners, individual members of that board, and two managerial
employees of county government (the County).
The district court denied the Newspaper's petition for writ of mandamus seeking disclosure of
unredacted records documenting use of publicly owned cellular telephones. It did so under the County's
claim of confidentiality based upon a deliberative process privilege. The Newspaper seeks reversal of
this ruling.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On February 9, 1998, the Newspaper requested that the county manager of Clark County produce copies
of records documenting the use, over a two-year period, of publicly owned cellular telephones issued to the
individual respondents. This request was made in connection with the Newspaper's investigation into possible
government waste, and the extent of influence over public officials by private lobbying interests. The County
partially complied with the request by providing billing statements for the time period in question in edited
form, i.e., with the last four digits of the listed incoming and outgoing telephone numbers redacted. The
documents produced reflected all calls made on a monthly basis, whether the calls were local or long
distance, the length of each call, whether the calls were incoming or outgoing, whether the calls were made
to or from government land lines, the charges for each call and the total monthly expenses. The redactions
prevented any person reviewing the documents from determining the identity of the individuals with whom
cellular telephone conversations occurred, or whether numbers with non-government prefixes reflected
personal or government business use.
The County claimed that the redacted information was subject to claims of confidentiality on three
grounds:
........................................
to claims of confidentiality on three grounds: first, the records were subject to a deliberative process privilege;
second the disclosures were protected under an official information privilege, see NRS 49.285; and third, the
disclosures sought would violate individual privacy rights of persons whose telephone numbers were listed on
the billing statements.
On February 17, 1998, the Newspaper filed a petition in the district court for issuance of a writ of mandamus
compelling the County to produce unedited records. See NRS 239.011. The district court denied the petition,
and the Newspaper timely appealed. For the reasons stated below, we reverse the district court's order and direct
that the district court compel the disclosure of complete unredacted records documenting use of publicly owned
cellular telephones.
DISCUSSION
[Headnote 1]
The County argues that the ruling below should be affirmed based upon statutory and common-law claims
of confidentiality. In substance, the only issue determined by the district court was whether a deliberative
process privilege protects the County from disclosing the redacted portions of the cellular telephone records. In
its written decision, the district court impliedly rejected the official information privilege asserted under NRS
49.285, and did not reach the issue of whether individual privacy rights were violated. Because the district
court refused to find the presence of a statutory privilege, the primary issue to be determined in this matter is
whether a deliberative process privilege applies as found by the district court.
1
Because we conclude that such
a privilege is not implicated in this instance, we will also discuss the related issue of whether privacy
considerations protect the County from disclosure of the unredacted records.
[Headnotes 2-4]
resulting from an office, trust or station, see NRS 34.160, or to control an arbitrary or capricious exercise of
discretion. See Round Hill Gen. Imp. Dist.
__________

1
We note in the margin our agreement with the district court that the claim of official information privilege
under NRS 49.285 was tortured and conclude that the claim was completely without merit. NRS 49.285
provides that [a] public officer shall not be examined as a witness as to communications made to him in official
confidence, when the public interests would suffer by disclosure. First, no testimony was sought. Second, no
showing was made by the County below that any particular public interest would suffer as a result of full
compliance with the public records request in this case.
........................................
v. Newman, 97 Nev. 601, 637 P.2d 534 (1981). A district court's decision to grant or deny a writ petition is
reviewed by this court under an abuse of discretion standard. See County of Clark v. Doumani, 114 Nev. 46, 53,
952 P.2d 13, 17 (1998). Mandamus is the appropriate procedural remedy to compel production of the public
records sought in this case. See, e.g., Donrey of Nevada v. Bradshaw, 106 Nev. 630, 798 P.2d 144 (1990).
[Headnotes 5, 6]
The Nevada Public Records Act provides that [a]ll public books and public records of a governmental
entity, the contents of which are not otherwise declared by law to be confidential, must be open at all times
during office hours to inspection by any person. NRS 239.010. The purpose of the Act is to ensure the
accountability of the government to the public by facilitating public access to vital information about
governmental activities. Neither party to this appeal disputes that the records at issue are public records under
the Act. This view is consistent with the prevailing weight of legal authority. See, e.g., City of Elkhart v.
Agenda: Open Government, Inc., 683 N.E.2d 622 (Ind. Ct. App. 1997); PG Publishing Company v. County of
Washington, 638 A.2d 422 (Pa. Commw. 1994); Dortch v. Atlanta Journal, 405 S.E.2d 43 (Ga. 1991).
[Headnotes 7-9]
The public official or agency bears the burden of establishing the existence of privilege based upon
confidentiality. It is well settled that privileges, whether creatures of statute or the common law, should be
interpreted and applied narrowly. See Ashokan v. State, Dept. of Ins., 109 Nev. 662, 668, 856 P.2d 244, 247
(1993) (citing United States v. Nixon, 418 U.S. 683, 710 (1974)). Unless a statute provides an absolute privilege
against disclosure, the burden of establishing the application of a privilege based upon confidentiality can only
be satisfied pursuant to a balancing of interests:
In balancing the interests . . . , the scales must reflect the fundamental right of a citizen to have access
to the public records as contrasted with the incidental right of the agency to be free from unreasonable
interference. . . . The citizen's predominant interest may be expressed in terms of the burden of proof
which is applicable in this class of cases; the burden is cast upon the agency to explain why the records
should not be furnished.
MacEwan v. Holm, 359 P.2d 413, 421-22 (Or. 1961); see Bradshaw, 106 Nev. at 635-36, 798 P.2d at 147-48.
........................................
[Headnote 10]
In Bradshaw, this court, at least by implication, recognized that any limitation on the general disclosure
requirements of NRS 239.010 must be based upon a balancing or weighing of the interests of non-disclosure
against the general policy in favor of open government. Bradshaw specifically held that, in the absence of an
express statutory privilege against non-disclosure, certain criminal investigative reports prepared by a public law
enforcement agency were subject to disclosure pursuant to the balancing test. The Bradshaw court did not
elaborate on the existence or scope of common-law privileges protecting disclosure of public records.
The claim of deliberative process privilege
As noted, the district court concluded that the records at issue were subject to partial non-disclosure under
a common-law deliberative process privilege. It then applied the Bradshaw balancing test and ruled that the
production of redacted documents did not violate the Public Records Act. The County did not, in aid of the
balancing process, provide the district court with particularized evidence showing that any interest in
non-disclosure outweighed the general presumption in favor of public access. Noting apparent inconsistencies in
the case law from around the country, and faced with a case of first impression in this state, the district court
applied decisional law from California. See Times Mirror Co. v. Superior Ct., 813 P.2d 240, 242 (Cal. 1991)
(discussing the rationale behind the deliberative process privilege); Rogers v. Superior Court, 23 Cal. Rptr. 2d
412 (Ct. App. 1993) (holding that cellular telephone bills of the Burbank City Council and other City employees
were subject to the deliberative process privilege). Having considered the various approaches taken by other
courts, and having weighed the public policy considerations inherent in our Public Records Act, we respectfully
disagree with the district court and conclude that these records are not protected under a deliberative process
privilege.
[Headnotes 11, 12]
The deliberative process or executive privilege is one of the traditional mechanisms that provide protection
to the deliberative and decision-making processes of the executive branch of government and is preserved in
Exemption 5 of the Freedom of Information Act, 5 U.S.C. 552 (1994). This privilege shields from
mandatory disclosure inter-agency or intra-agency memorandums or letters which would not be available by law
to a party other than an agency in litigation with the agency[.]' Paisley v. C.I.A., 712 F.2d 686, 697 (D.C. Cir.
1983) (quoting 5 U.S.C. 552{b){5)).
........................................
552(b)(5)). It also permits agency decision-makers to engage in that frank exchange of opinions and
recommendations necessary to the formulation of policy without being inhibited by fear of later public
disclosure, id. at 698, and, thus, protects materials or records that reflect a government official's deliberative or
decision- making process. See EPA v. Mink, 410 U.S. 73, 89 (1973). The privilege is not, at least in general,
designed to protect purely factual matters. Id. More particularly, purely factual matters are not protected unless
inextricably intertwined with the policy-making process. See Soucie v. David, 448 F.2d 1067, 1077-78 (D.C.
Cir. 1971). But see National Wildlife Federation v. U.S. Forest Service, 861 F.2d 1114, 1118-19 (9th Cir. 1988);
Wolfe v. Department of Health and Human Services, 839 F.2d 768, 774 (D.C. Cir. 1988); Dudman
Communications v. Dept. of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987); Russell v. Department of the
Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982); Ryan v. Department of Justice, 617 F.2d 781, 790 (D.C. Cir.
1980); Lead Industries Ass'n v. OSHA, 610 F.2d 70, 85-86 (2d Cir. 1979); Montrose Chemical Corporation of
California v. Train, 491 F.2d 63, 67-71 (D.C. Cir. 1974).
2

[Headnotes 13-15]
To qualify for non-disclosure under this privilege, the requested documents must be both predecisional and
deliberative. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151-54 (1975); Vaughn v. Rosen, 523 F.2d
1136, 1143-44 (9th Cir. 1975). To establish that the phone records in this case are predecisional, the County
must identify an agency decision or policy to which the documents contributed. See Senate of Puerto Rico v.
U.S. Dept. of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987). To qualify as part of deliberative process, the
materials requested must consist of opinions, recommendations, or advice about agency policies. In Paisley v.
C.I.A., 712 F.2d 686, 698 (D.C. Cir. 1983), vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984),
the United States Court of Appeals for the District of Columbia explained the analysis as follows:
To ascertain whether the documents at issue are predecisional, the court must first be able to pinpoint
an agency decision or policy to which these documents contributed. The agency bears the burden of
establishing the character of the decision, the deliberative process involved, and the role played by the
documents in the course of that process.
__________

2
National Wildlife, Wolfe, Dudman, Russell, Ryan, Lead Industries and Montrose Chemical all found
inextricable interconnection between documents sought and the deliberative process, i.e., none of the materials
sought in those cases would have been discoverable in the context of ordinary litigation discovery.
........................................
. . . .
If, on remand, the District Court finds that the documents did play a role in some agency decision
making process, the documents must yet be shown to be deliberative to be protected under Exemption
5. It is well established that purely factual material which is severable from the opinion or policy advice
in a document is generally not protected and must be disclosed in a FOIA suit.
Id. at 698-99; see also Senate of Puerto Rico, 823 F.2d at 585.
[Headnote 16]
The County asserts that the factual nature of the documents requested should not be the primary focus of
inquiry under the Public Records Act. Rather, the County contends that this court must center any analysis on
whether the disclosure of materials would expose an agency's decision-making process in such a way as to
discourage candid discussion within the agency and thereby undermine the agency's ability to perform its
functions.' Times Mirror, 813 P.2d at 250 (quoting Dudman Communications, 815 F.2d at 1568). The court in
Times Mirror observed that [d]isclosing the identity of persons with whom the Governor has met and consulted
. . . would indicate which interests or individuals he deemed to be of significance with respect to critical issues of
the moment. The intrusion into the deliberative process is patent. Id. at 251. Thus, the County argues under
Times Mirror and Rogers (applying Times Mirror to public cellular telephone records) that a particularized
evidentiary showing was unnecessary to establish application of the deliberative process privilege. Id. We
disagree with the premise of the California decisions and conclude that the names of persons with whom
government officials have consulted are not protected from disclosure under a deliberative process privilege. See
Van Bourg, Allen, Weinberg & Roger v. N.L.R.B., 751 F.2d 982, 985 (9th Cir. 1985) (inferentially stating that
Exemption 5 to the Freedom of Information Act does not protect documents prepared for the government by
outside consultants who do not have a formal relationship with the government); County of Madison, N.Y. v.
U.S. Dept. of Justice, 641 F.2d 1036 (1st Cir. 1981) (approving principle that interested outside parties are not
covered by Exemption 5 to FOIA). We agree with the proposition that identification of persons, retained or
otherwise, who participate in policy formation and are somehow identified in the public written record, does not
implicate the disclosure of factual information inextricably intertwined with the decision or policy-making
processes of government. We also agree that [f]ew outside consultants would be discouraged from providing
recommendations by the mere prospect that their names would be disclosed,
........................................
would be disclosed, without the content of their advice and that there is . . . a public interest in knowing who is
being consulted by the Government and contributing to its decisions. Note, The Freedom of Information Act
and the Exemption for Intra-Agency Memoranda, 86 Harv. L. Rev. 1047, 1065-66 (1973).
[Headnote 17]
Records kept with regard to use of cellular telephones issued to county officials, telephones that are issued as
a matter of convenience, reveal nothing that would interfere with any deliberative process of government. The
public officials in this case were not compelled to conduct business over a phone system where the billings, as a
matter of course, include the local and long distance numbers of the parties to the telephonic conversations.
We also conclude that Times Mirror and Rogers are distinguishable from the present matter. Times Mirror
enforced executive privilege in the context of a request for copies of Governor George Deukmejian's
appointment calendars and schedules for the preceding five-year period. We agree that such materials are
protected under notions of executive privilege and note that, within the special facts of that case, the California
Supreme Court performed a balancing test and concluded that the public interest in non-disclosure outweighed
the public interest in disclosure under the California public records law. In Rogers, the California Court of
Appeals simply extended the holding in Times Mirror to the public records kept in connection with public
cellular telephone use. Further, Rogers did not reach the issue of whether disclosure of cellular telephone records
could be justified in connection with an investigation of possible government waste. Finally, neither Rogers nor
Times Mirror hold that disclosure of records of this nature is subject to blanket protection.
Other courts have held publicly owned cellular telephone records subject to disclosure. See City of Elkhart v.
Agenda: Open Government, Inc., 683 N.E.2d 622 (Ind. Ct. App. 1997); PG Publishing Company v. County of
Washington, 638 A.2d 422 (Pa. Commw. 1994); Dortch v. Atlanta Journal, 405 S.E.2d 43 (Ga. 1991). While
Elkhart, PG Publishing and Dortch do not resolve public disclosure of these records under a deliberative
process privilege, they acknowledge the public nature of these records and the general presumption in favor of
public disclosure, subject only to a particularized showing of risks compelling non-disclosure. Further, as is true
with regard to the materials sought in this case, the records in Elkhart, PG Publishing and Dortch fell within no
statutory protection against disclosure.
In the proceedings below, the County never identified the particular policies or decisions that could result
from any of the cellular telephone calls documented in the redacted records. The County also failed to
demonstrate that the records revealed any opinion,
........................................
County also failed to demonstrate that the records revealed any opinion, recommendation, or advice held by or
given to any of the individual respondents. Thus, the information requested is purely factual in nature and does
not reveal the content of any deliberative processes of the County. Further, as noted, no showing was made that
the factual material is inextricably intertwined with any policy-making process.
[Headnote 18]
We also conclude that any weighing process on this record would compel disclosure of the unredacted
documents. In the proceedings below, payment for private use of governmental cellular phone service by
government officials was not properly accounted for in the records produced by the County. This lack of
accounting prevented the Newspaper from determining the extent to which any governmental waste may have
occurred. The County also failed to demonstrate that the records, as they were disclosed, provided an exact
accounting of government expenditures for what may have been personal calls. Rather, the County concedes that
ball park figures were utilized to determine the proper amounts for which the individual respondents
reimbursed the County for personal calls. Further, the records as released failed to establish which conversations
were entitled to confidentiality.
We therefore hold that the County did not make a showing that the requested records implicate a deliberative
process privilege. These records contain only numbers and billing information. They contain no information as
to topics discussed or advice or opinions exchanged between the parties to the telephone calls.
[Headnote 19]
We also note that a deliberative process privilege, even when applicable, is conditional:
Once the court determines that a document is privileged, it must still determine whether the document
should be withheld. Unlike some other branches of the executive privilege, the deliberative process
privilege is a qualified privilege. Once the agency demonstrates that documents fit within it, the burden
shifts to the party seeking disclosure. It must demonstrate that its need for the information outweighs the
regulatory interest in preventing disclosure.
Capital Info. Group v. Office of the Governor, 923 P.2d 29, 36 (Alaska 1996) (quoting Weaver & Jones, The
Deliberative Process Privilege, 54 Mo. L. Rev. 279, 315 (1989)). Here, because the County never demonstrated
by evidentiary proofs that a deliberative process privilege was implicated by the disclosure of the unredacted
records, the burden never shifted to the Newspaper.
........................................
Further, the absence of such proof prevented the district court from engaging in the weighing process mandated
by Bradshaw.
Privacy considerations
[Headnote 20]
In a related argument, not based on privilege, the County contends that disclosure of unredacted records
would violate the privacy of persons with unlisted telephone numbers reflected on the billing statements. We
conclude that, in general, there is no expectation of privacy in these billings. First, public officials who make
calls to unlisted numbers or who provide their cellular numbers to members of the public know that the billings
are a public record. Thus, the act of placing a cellular call to a private citizen places the number called within
the public domain. Second, members of the public who knowingly place calls to government-issued cellular
phones know that the public billings will reflect their unlisted telephone numbers. Third, to the extent that
exigent circumstances are shown to justify non-disclosure, a district court reviewing such a claim is required to
apply the Bradshaw balancing test. This issue is addressed immediately below.
The County registers its public policy concern that private numbers of public officials, police and other
persons whose privacy, and possibly safety, might be compromised will be forced into the public record. The
County asks us to consider the reasoning of the dissent in Dortch:
The real result of today's opinion is that any member of the general public, including convicted felons,
may access the personal unlisted telephone numbers of our citizens, including police officers and their
families. All that is required is that a person's home receive a call from a city-subscribed cellular phone.
This is especially troubling in light of the fact that many police officers order and pay for unpublished
telephone numbers in order to protect their families from harassment. Today's opinion effectively denies
these officers, and others, their right to privacy and frustrates their attempts to shield their families and
homes from intrusion.
Additionally, giving the public, through the release of the city's cellular telephone numbers, the means
to call city officials at will and at the city's expense serves no conceivable purpose. The city has already
complied with the Open Records Act by releasing the names of the official users of each cellular
telephone and an accounting of the telephone expenses of each of those individuals. This adequately
provides the public with the means to evaluate the expenditure of public funds.
Revealing the city's cellular telephone numbers will do nothing to improve the public's
ability to communicate with the government or to monitor government expenses
but will leave city officials open to harassment and the city treasury open to
unchecked costs. . . .
........................................
nothing to improve the public's ability to communicate with the government or to monitor government
expenses but will leave city officials open to harassment and the city treasury open to unchecked costs. . .
. The police have even more pressing reasons to keep their cellular telephone numbers confidential. . . .
Allowing the general public, including pranksters, to clog these confidential lines may seriously impair
[police] ability to communicate, respond to calls, and insure the public's safety.
Dortch, 405 S.E.2d at 46-47 (citation omitted).
Expanding on the concerns expressed in the dissent in Dortch, the County raises the point that inside or
back lines of government offices, the cellular telephone numbers themselves, and the unlisted home telephone
numbers of county employees who are contacted after hours will be subject to disclosure if the Newspaper
prevails on this appeal. We conclude that the County has not laid an adequate predicate on this record for
non-disclosure on this basis. First, these concerns are easily addressed by the balancing test adopted by this court
in Bradshaw. Second, as noted, no offer of proof of any kind was submitted to the district court for the purpose
of balancing important or critical privacy interests against the presumption in favor of public disclosure of these
redacted records.
3
Rather, the County seeks to meet its burden by voicing non-particularized hypothetical
concerns. See Star Pub. Co. v. Parks, 875 P.2d 837, 838 (Ariz. Ct. App. 1993) (observing that it is insufficient
[for the public entity] to hypothesize cases where secrecy might prevail and then contend that the hypothetical
controls all cases).
CONCLUSION
We conclude that the district court erred in its denial of the Newspaper's petition for mandamus relief. While
a deliberative process or executive privilege against certain disclosures exists in certain contexts, such a
privilege is not implicated here. Thus, we defer any discussion of the scope of the deliberative process for an
appropriate case. Further, even if a deliberative process privilege were found to apply, we conclude that public
policy justifications for non-disclosure urged by the County below do not outweigh the presumption in favor of
full disclosure in this instance.
We therefore reverse the district court's order denying the Newspaper's writ petition and remand
this matter to the district court for issuance of a writ of mandamus compelling the County
to provide the Newspaper with unredacted copies of the requested records and for an
award to the Newspaper of attorney's fees and costs pursuant to NRS 239.011.
__________

3
To the extent that disclosure of an unlisted number might raise serious privacy concerns, the district court,
applying the balancing test, could require the County to divulge the identity of the caller but not his or her
unlisted telephone number.
........................................
Newspaper's writ petition and remand this matter to the district court for issuance of a writ of mandamus
compelling the County to provide the Newspaper with unredacted copies of the requested records and for an
award to the Newspaper of attorney's fees and costs pursuant to NRS 239.011.
4

____________
116 Nev. 629, 629 (2000) Washoe County Dist. Attorney v. Dist. Ct.
OFFICE OF THE WASHOE COUNTY DISTRICT ATTORNEY, Petitioner, v. THE SECOND JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF WASHOE and
THE HONORABLE DEBORAH SCHUMACHER, District Judge, Respondents, and DAVID L.
BOLNICK, ESQ., and ALBERT McKEEL, Real Parties in Interest.
No. 35125
August 18, 2000 5 P.3d 562
Original petition for a writ of mandamus or prohibition challenging an order of the district court imposing
NRCP 11 sanctions against the Washoe County District Attorney's Office in an action seeking to enforce a child
support order.
District attorney's office filed petition for writ of mandamus, challenging order of the district court, which
imposed NRCP 11 sanctions against the office for failing to discontinue action to enforce out-of-state child
support order. The supreme court held that: (1) writ of mandamus was an available remedy, (2) manifest abuse
of discretion standard governed review of district court's NRCP 11 order, (3) arrears did not need to be reduced
to a sum certain judgment before enforcement could be sought, and (4) district attorney's office did not have
duty to discontinue enforcement action after district court ruled that the other state had continuing exclusive
jurisdiction over the support order.
Petition granted.
__________

4
NRS 239.011 provides, as follows:
If a request for inspection or copying of a public book or record open to inspection and copying
is denied, the requester may apply to the district court in the county in which the book or record is
located for an order permitting him to inspect or copy it. The court shall give this matter priority
over other civil matters to which priority is not given by other statutes. If the requester prevails, he
is entitled to recover his costs and reasonable attorney's fees in the proceeding from the
governmental entity whose officer has custody of the book or record.
........................................
Richard A. Gammick, District Attorney, and Susan D. Hallahan and Laurence B. Irwin, Deputy District
Attorneys, Family Support Division, Washoe County, for Petitioner.
David L. Bolnick, Reno, for Real Parties in Interest.
1. Mandamus.
A writ of mandamus will issue to control a court's arbitrary or capricious exercise of discretion. NRS 34.160.
2. Mandamus.
The supreme court has original jurisdiction to issue writs of mandamus. Const. art. 6, 4.
3. Mandamus.
District attorney's office, as a non-party in underlying proceedings to enforce out-of-state child support order, did not have right to
appeal district court's order imposing NRCP 11 sanctions against the office, and thus writ of mandamus was an available remedy. NRS
34.160; NRAP 3A(a); NRCP 11.
4. Mandamus.
In context of writ of mandamus proceeding initiated by district attorney's office, the supreme court would review district court's
decision to impose NRCP 11 sanctions against district attorney's office, in underlying action to enforce out-of-state child support order,
under a manifest abuse of discretion standard, rather than under the abuse of discretion standard. NRCP 11.
On direct appeal, an award of attorney's fees under NRCP 11 is reviewed under the abuse of discretion standard. NRCP 11.
6. Mandamus.
Mandamus will not lie to control discretionary action, unless discretion is manifestly abused or is exercised arbitrarily or
capriciously. NRS 34.160.
Arrears owed by obligor under out-of-state child support order did not need to be reduced to a sum certain judgment before district
attorney's office could seek enforcement of the order in Nevada. NRS 125B.140(1)(a).
District attorney's office did not have duty to discontinue action to enforce out-of-state child support order after district court ruled
that the other state had continuing exclusive jurisdiction over the support order. Statutes specifically authorized enforcement of the
arrears in Nevada, regardless of support order's state of origin. Social Security Act, 466(a)(9), as amended, 42 U.S.C. 666(a)(9);
NRS 125B.140(1)(a), 130.015(1).
District attorney's office did not act in violation of NRCP 11 when it sought to enforce out-of-state child support order, and thus
district court manifestly abused its discretion in ordering the office to pay obligor's attorney's fees and costs. District attorney's office
properly relied on affidavit of child support arrears from other state's office of child support enforcement, properly responded to
enforcement request and properly sought to enforce the support order in Nevada. Social Security Act, 466(a)(9), as amended, 42
U.S.C. 666(a)(9); NRS 125B.140(1)(a), 130.015(1); NRCP 11.
........................................
OPINION
Per Curiam:
In a case brought by the district attorney to enforce a Washington child support order in Nevada, the
district court imposed NRCP 11 sanctions against the district attorney for failing to discontinue enforcement
of the support order after the district court's previous ruling that Washington had continuing exclusive
jurisdiction to adjudicate the arrearage amount.
The district attorney now contends that the NRCP 11 order is legally insufficient and that the district
court misinterpreted existing law in concluding that NRCP 11 was violated. We conclude that the district
court manifestly abused its discretion in imposing NRCP 11 sanctions against the district attorney, because it
based the order of sanctions on an erroneous view of the law governing enforcement of out-of-state child
support orders. We also conclude that the conduct of the district attorney in initiating and continuing the
enforcement action was in conformity with NRS 125B.140(1)(a), NRS 130.015(1) and 42 U.S.C. 666(a)(9).
FACTS
Bonnie G. Davis (obligee) and real party in interest Albert H. McKeel (obligor) were divorced
pursuant to a Decree of Dissolution (divorce decree and support order) entered in Washington state,
where obligee and obligor were residents. The decree ordered obligor to pay child support to obligee of $150
per month for each of their two minor children.
Fifteen years later, in 1996, obligor moved from Washington to Nevada. Shortly thereafter, the Everett
County, Washington, Office of Child Support Enforcement (OCSE) sent a child support enforcement
transmittal to petitioner, the Washoe County District Attorney's Office (district attorney). This transmittal
requested that the Washington divorce decree be registered in Nevada for enforcement only. A copy of the
divorce decree was included with the transmittal, as well as an affidavit of arrears signed by a representative
of Washington OCSE. The affidavit included a monthly itemization from November 1981 to March 1996,
showing an accumulation of $42,567 in child support arrears. From this $42,567, Washington OCSE
deducted $11,425 as lost to statute of limitations, leaving an enforceable total of $30,992 in arrears.
The obligor was personally served with a notice of intent to enforce child support, a copy of the divorce
decree and the Washington OCSE affidavit of arrears.
........................................
Washington OCSE affidavit of arrears. The obligor requested a hearing regarding arrearages and his duty of
support, claiming that in 1982 or 1983, Washington OCSE stopped accepting his child support payments
because the obligee had refused to give Washington OCSE her address or phone number. The obligor also
claimed that the obligee informed him in 1986 or 1987 that he had lost all parental rights to one of the children,
due to the child's adoption by a step-parent.
A hearing was conducted and a court master determined that one child had become emancipated and the
other would be emancipated on July 1, 1997. The master recommended that obligor pay ongoing support of
$150 per month for the remaining minor child, pursuant to the divorce decree. The arrears issue was not
addressed in the court master's recommendation, apparently because of the defenses asserted by the obligor. The
obligor did not object to the recommendation, and the district court affirmed the recommendation on December
30, 1996. The ongoing support is not the subject of this petition.
Washington OCSE again requested that the district attorney collect arrears that had allegedly accrued
pursuant to the divorce decree. After settlement negotiations failed, a hearing was set to address the issue of
collection of arrears. The notice of hearing stated that the purpose of the hearing was only for a [f]inancial
review to determine a payment on arrears, and did not state that the amount of arrears would be adjudicated.
At this hearing, the court master recommended that the district court conclude that Washington had
continuing exclusive jurisdiction over the matter and that the obligor was responsible for all child support and
arrears payments due. However, the court master stated that the issue of whether Nevada should adjudicate the
actual amount of the arrears (including an adjudication of obligor's defenses to those arrears) was under
submission, to be briefed by the parties. On December 10, 1997, the district court adopted the court master's
findings and recommendations.
The district attorney filed a brief requesting that the district court decline jurisdiction to determine the
amount of arrears. The district attorney argued that the obligor could raise defenses only to the enforcement of
the Washington support order, but not to the amount of arrears that may have accrued under that order, because
Washington had continuing exclusive jurisdiction to make that determination. The district attorney argued that if
the court determined that the obligor had a sufficient defense to enforcement of the child support order (as
opposed to a defense to the amount of child support), the court should simply refuse to enforce the order but
should not go further in making an adjudication as to the amount of arrears that had accrued under the order.
Alternatively, the district attorney argued that the district court should decline jurisdiction
to adjudicate the arrears amount under the doctrine of forum non conveniens,
........................................
the district attorney argued that the district court should decline jurisdiction to adjudicate the arrears amount
under the doctrine of forum non conveniens, because everything associated with the case, except the obligor,
was still located in Washington.
The obligor filed a responsive brief, arguing that the district court did have jurisdiction to determine the
amount of child support arrears, if any, that accrued under the Washington divorce decree. The obligor argued
that Nevada courts could adjudicate the amount of arrears because the Nevada proceeding was only an
enforcement action, not a modification action. The obligor argued that an adjudication by Nevada as to the
amount of arrears would not amount to a modification under 28 U.S.C. 1738B(b), which defined
modification of a support order as a change that affects the amount, scope, or duration of the order and
modifies, replaces, supersedes, or otherwise is made subsequent to the child support order. The obligor also
argued that forum non conveniens should not be invoked because no factual showing in support of forum non
conveniens had been made. One day prior to filing this brief, the obligor filed and registered the Washington
divorce decree with the district court.
After briefing was completed, the court master recommended that justice would be better served by having
the court in Washington determine the issues, and defenses raised by the [o]bligor, involving the child support
arrearage amount. The court master's recommendation did not expressly state whether it was declining
jurisdiction because of forum non conveniens or because it lacked jurisdiction due to Washington's continuing
exclusive jurisdiction. The court master recommended that enforcement of the arrears be stayed if the obligor
pursued his defenses in the state of Washington. The court master further recommended that if the obligor failed
to pursue his defenses in Washington in good faith, and report the same to the district court within two months,
wage withholding for the arrears was to commence at the rate of $300 per month.
The obligor filed an objection to the court master's recommendations, arguing that if Nevada courts had no
authority to adjudicate arrears then they had no authority to require him to assert his defenses in Washington. He
argued that the initiation of an action in Washington regarding arrearages was the burden of the moving party,
namely, the district attorney and the obligee. The obligor also argued that it was improper to order payment on
arrears, when the alleged arrears had never been reduced to judgment by any court.
The district court conducted a hearing on the obligor's objections to the court master's recommendations and
adopted the recommendation that the district court did not have subject matter jurisdiction to adjudicate
whether the obligor owed any child support arrearages.
........................................
jurisdiction to adjudicate whether the obligor owed any child support arrearages. The district court rejected the
recommendation that the obligor must pay the alleged arrearages unless he initiated an action in Washington to
present his defenses. At the hearing, the district court denied the obligor's oral motion for NRCP 11 sanctions
against the district attorney, because the district attorney had not received adequate notice of the motion, but
gave the obligor two weeks to file a written motion for NRCP 11 sanctions.
The obligor thereafter filed a written motion for NRCP 11 sanctions, arguing that: (1) the district attorney
had wrongfully commenced a proceeding in Nevada, rather than in Washington, to reduce the child support
arrearages to judgment; (2) the action was frivolous under both Nevada and Washington law, because of the
obligor's uncontroverted defenses to the payment of arrearages; and (3) the district attorney had failed to
concede that the court master's recommendation ordering the obligor to initiate an action in Washington was
erroneous.
The district attorney responded to the motion for sanctions by arguing that the action was not wrongfully
filed, because it was a legitimate attempt merely to enforce the valid Washington support order, unlike the
obligor's mischaracterization of the action as an attempt to reduce the arrearages to judgment. The district
attorney emphasized that the obligor was the one who wanted the arrearage adjudicated in Nevada, and that it
had been the district attorney's position throughout the proceeding that Washington had continuing exclusive
jurisdiction to adjudicate the arrears but that Nevada had jurisdiction to enforce the arrears. The district attorney
argued that the action was filed within the scope of the Uniform Interstate Family Support Act (NRS 130.0902 to
130.802, inclusive), which recognizes that a state without continuing exclusive jurisdiction may enforce the
orders of the state that has continuing exclusive jurisdiction. The district attorney also argued that the existence
of the obligor's defenses did not make the action frivolous, but merely made it contested. Finally, the district
attorney argued that NRCP 11 imposes no affirmative obligation to concede an erroneous court master's
recommendation.
The district court entered a written order (NRCP 11 order) imposing NRCP 11 sanctions against the
district attorney on June 9, 1999. The district court accepted the obligor's argument that the enforcement of
arrears should have been discontinued after the district court ruled eighteen months previously that Washington
had continuing exclusive jurisdiction over the arrears. At that time, the district court concluded, the district
attorney had a duty to stop attempting enforcement and inform Washington that Nevada could not enforce the
child support provisions because the obligor had a right to present his defenses before being
required to pay arrears.
........................................
obligor had a right to present his defenses before being required to pay arrears.
The district court noted that the district attorney had conceded that Nevada lacked jurisdiction to adjudicate
alleged arrears and that the district attorney claimed to have always maintained that Washington had continuing
exclusive jurisdiction. However, the district court concluded that this claim was belied by the notice of hearing
that the obligor received on August 20, 1997, which stated that the purpose of the hearing was to determine a
payment on arrears. The district court ordered the district attorney to pay the obligor's attorney's fees and costs
of approximately $3,300 incurred during the approximate eighteen months since the district court ruled that
Washington had continuing exclusive jurisdiction. The order stated that NRCP 11 had been violated, but did not
identify any specific documents in violation of NRCP 11 or which attorneys had signed the documents.
Thereafter, the district attorney filed this petition for mandamus or prohibition, requesting that this court
direct the district court to vacate its order of sanctions or refrain from enforcing the order.
DISCUSSION
I. Writ properly before the court
[Headnotes 1, 2]
This court may issue a writ of mandamus to enforce the performance of an act which the law especially
enjoins as a duty resulting from an office . . . or to compel the admission of a party to the use and enjoyment of
a right . . . to which he is entitled and from which he is unlawfully precluded by such inferior tribunal. NRS
34.160. A writ of mandamus will issue to control a court's arbitrary or capricious exercise of discretion.
Marshall v. District Court, 108 Nev. 459, 466, 836 P.2d 47, 52 (1992) (citing Round Hill Gen. Imp. Dist. v.
Newman, 97 Nev. 601, 637 P.2d 534 (1981)). This court has original jurisdiction to issue writs of mandamus.
See Nev. Const. art. 6, 4. We decline petitioner's alternate request for a writ of prohibition because in this
matter the district court did not act in excess of its jurisdiction.
[Headnote 3]
Petitioner district attorney, a non-party in the proceeding below, is without right to appeal and therefore is
not an aggrieved party within the meaning of NRAP 3A(a). See Albany v. Arcata Associates, 106 Nev. 688, 799
P.2d 566 (1990). Because petitioner cannot appeal the NRCP 11 order of sanctions, petitioner has no plain,
speedy and adequate remedy at law other than to petition this court, and therefore writ relief is an available
remedy. Wardleigh v. District Court, 111 Nev. 345, 350, 891 P.2d 1180, 1183 (1995).
........................................
II. Standard of review
[Headnotes 4-6]
On direct appeal, an award of attorney's fees under NRCP 11 is reviewed under the abuse of discretion
standard. Bergmann v. Boyce, 109 Nev. 670, 676, 856 P.2d 560, 564 (1993). However, because [m]andamus
will not lie to control discretionary action, unless discretion is manifestly abused or is exercised arbitrarily or
capriciously, we review this matter under a manifest abuse of discretion standard. Round Hill, 97 Nev. at
603-04, 637 P.2d at 536. NRCP 11 provides, in relevant part, as follows:
The signature of an attorney or party constitutes a certificate by that attorney or party that he or she has
read the pleading, motion, or other paper; that to the best of his or her knowledge, information and belief,
formed after reasonable inquiry under the circumstances obtaining at the time of signature, that it is well
grounded in fact and is warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law, and that it is not interposed for any improper purpose such as to
harass or to cause unnecessary delay or needless increase in the cost of litigation. . . . If a pleading,
motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative,
shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which
may include an order to pay to the other party or parties the amount of the reasonable expenses incurred
because of the filing of the pleading, motion, or other paper, including a reasonable attorney fee.
We conclude that the district court based its ruling on an erroneous view of the law regarding enforcement of
out-of-state child support orders, as outlined below, and therefore manifestly abused its discretion in imposing
sanctions against the district attorney.
III. Enforcement of an out-of-state child support order
Petitioner asserts two main arguments: (1) the NRCP 11 order is legally insufficient to support a finding
that NRCP 11 was violated; and (2) the district court manifestly abused its discretion in ruling that NRCP 11
had been violated, because the ruling was based on an erroneous view of the law.
First, petitioner argues that the NRCP 11 order is legally deficient because: (1) it fails to identify what, if
any, document was signed in violation of NRCP 11; and (2) it fails to identify which attorney or party signed
such document. The obligor
1
responds by arguing that the NRCP 11 order did not need to identify
which documents filed by the district attorney violated NRCP 11 because the "file is
replete with such papers."
__________

1
For the discussion portion of this opinion, the obligor refers to real party in interest Albert McKeel (the
obligor in this opinion's fact portion)
........................................
arguing that the NRCP 11 order did not need to identify which documents filed by the district attorney violated
NRCP 11 because the file is replete with such papers.
Second, petitioner argues that, even if the NRCP 11 order is valid despite its failure to identify which
document signed by which attorney or party violated NRCP 11, the entire action to enforce the Washington
decree was nevertheless well grounded in fact and warranted by existing law or good faith extension of existing
law. Namely, the action was well grounded in fact because it was based upon the sworn affidavit of arrears from
Washington OCSE. Further, the action was warranted by existing law because everything the district attorney
did was in conformity with the mandates of NRS 130.015 and 42 U.S.C. 666 and the provisions of NRS
125B.140(1)(a). NRS 130.015(1) provides as follows:
If a support-enforcement agency of this state receives a request from a support-enforcement agency of
another state to enforce a support order, the support-enforcement agency of this state shall respond to the
request as required by 42 U.S.C. 666. The request shall be deemed to constitute a certification by the
support-enforcement agency of the other state:
(a) Of the amount of support under the order for which payment is in arrears; and
(b) That the agency has complied with all requirements for procedural due process applicable to the
case.
42 U.S.C. 666(a)(9) provides, in pertinent part, that each state shall have:
[p]rocedures which require that any payment or installment of support under any child support order,
whether ordered through the State judicial system or through the expedited processes required by
paragraph (2), is (on or after the date it is due)
(A) a judgment by operation of law, with the full force, effect, and attributes of a judgment of the
State, including the ability to be enforced,
(B) entitled as a judgment to full faith and credit in such State and in any other State, and
(C) not subject to retroactive modification by such State or by any other State.
NRS 125B.140(1)(a)
2
provides as follows:
__________
and to McKeel's counsel, David L. Bolnick, who is also a real party in interest.

2
NRS 125B.004 defines court as the district court or any judicial or administrative procedure established in
this or any other state to facilitate the
........................................
If an order issued by a court provides for payment for the support of a child, that order is a judgment by
operation of law on or after the date a payment is due. Such a judgment may not be retroactively
modified or adjusted and may be enforced in the same manner as other judgments of this state.
Thus, argues the district attorney, the entire proceeding was not only allowed by NRS 125B.140(1)(a), but
mandated by NRS 130.015(1) and 42 U.S.C. 666(a)(9). Pursuant to those statutes, the district attorney
maintains that the action was a proper attempt to enforce, not to adjudicate, an out-of-state child support order.
The response to Washington OCSE's request and the reliance on the Washington certification of arrears was
proper, pursuant to NRS 130.015(1). Enforcement of the Washington support order as a judgment was proper,
the district attorney asserts, pursuant to NRS 125B.140(1)(a). In summary, the district attorney argues that the
district court misinterpreted these statutes in making its NRCP 11 ruling, and therefore the ruling constitutes a
manifest abuse of discretion.
The obligor essentially argues what the district court stated in the order of sanctions, that the district attorney
should not simply proceed to blind enforcement of all out-of-state requests to enforce a foreign support order,
but rather should exercise discretion as mandated by NRS 130.507(2). NRS 130.507(2) provides that the district
attorney, upon receiving from an out-of-state support-enforcement agency the necessary documents to enforce a
foreign support order, shall consider and, if appropriate, use any administrative procedure authorized by the
law of this state to enforce a support order. (Emphasis added.) The obligor argues that the if appropriate
language refutes the district attorney's claim that the statutes impose a mandate on the district attorney to enforce
out-of-state support orders.
3
The obligor also argues that the support order has been at all times since the
commencement of this action incapable of enforcement in Nevada because it had not been reduced to a sum
certain by a court from Washington, the state with continuing exclusive jurisdiction to do so. The obligor further
argues that the district attorney should have known the action was frivolous after reviewing the obligor's facially
valid defenses.
__________
collection of an obligation for the support of a child. (Emphasis added.) Therefore, NRS 125B.140(1)(a)
applies to the Washington child support order at issue here.

3
The obligor also argues that the district attorney has conceded that Nevada lacks subject matter jurisdiction
to enforce the arrears. However, based on our review of the record, the district attorney merely conceded that
Nevada has no jurisdiction to adjudicate the amount of arrears, while consistently maintaining that Nevada has
authority to enforce the arrears.
........................................
[Headnote 7]
We conclude that the district court, in imposing NRCP 11 sanctions, misapprehended the procedure outlined
in state and federal law for the enforcement of out-of-state child support orders. The NRCP 11 order overlooked
NRS 125B.140(1)(a), which provides that a child support order from a court of any state (see the definition of
court in NRS 125B.004), is considered a judgment by operation of law on or after the date a payment is due
and may be enforced in the same manner as other judgments of this state. Therefore, obligor's argument that
the arrears must be reduced to a sum certain judgment prior to enforcement lacks merit.
[Headnote 8]
We also note that the NRCP 11 order misconstrued the other statutes cited in petitioner's argument. No
statute supports the district court's conclusion that the district attorney had a duty to discontinue the enforcement
of the arrears once the district court ruled that Washington had continuing exclusive jurisdiction over the support
order. Rather, NRS 130.015(1), 42 U.S.C. 666(a)(9), and NRS 125B.140(1)(a) specifically authorize the
enforcement of arrears in Nevada, regardless of a support order's state of origin.
The NRCP 11 order referred to a notice of hearing sent to the obligor, saying that the notice belied the
district attorney's argument that it never intended to adjudicate the amount of arrears. The district court
misapprehended the notice of hearing, because a hearing to determine a payment on arrears is merely
enforcement of the arrears, not an indication of an adjudication of what the amount of arrears should be.
Accordingly, we conclude that the notice did not belie, but supported, the district attorney's claim to have never
pursued an adjudication of the arrears.
[Headnote 9]
Because the district attorney properly relied on the affidavit of arrears from Washington OCSE, pursuant to
NRS 130.015(1); properly responded to the enforcement request, pursuant to NRS 130.015(1) and 42 U.S.C.
666(a)(9); and properly sought to enforce the Washington support order in Nevada, pursuant to NRS
125B.140(1)(a), we conclude that the district court relied on an erroneous view of the law in concluding that the
district attorney acted in violation of NRCP 11. Because the district court erroneously interpreted the law
governing the district attorney's enforcement of the arrears, its NRCP 11 ruling is a manifest abuse of discretion.
Accordingly, we direct the clerk of the court to issue a writ of mandamus directing the district court to vacate the
NRCP 11 order entered on June 9, 1999.
........................................
NRCP 11 order entered on June 9, 1999.
4
See Marshall, 108 Nev. at 466, 836 P.2d at 52 (stating that [a] writ
of mandamus will issue to control a court's arbitrary or capricious exercise of discretion).
CONCLUSION
Based on the foregoing, we grant the petition for a writ of mandamus and instruct the clerk of the court to
issue a writ of mandamus directing the district court to vacate the NRCP 11 order entered on June 9, 1999.
____________
116 Nev. 640, 640 (2000) Las Vegas Downtown Redev. v. Dist. Ct.
CITY OF LAS VEGAS DOWNTOWN REDEVELOPMENT AGENCY, Petitioner, v. THE EIGHTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY OF
CLARK, and THE HONORABLE MARK R. DENTON, District Judge, Respondents, and HARRY
PAPPAS, JOHN PAPPAS, and CAROL PAPPAS, Real Parties in Interest.
No. 33779
August 18, 2000 5 P.3d 1059
Original petition for writ of mandamus or prohibition challenging a trial judge's decision to disqualify
himself in an eminent domain proceeding.
City redevelopment agency filed petition for writ of mandamus or prohibition, challenging a trial judge's
decision to disqualify himself in an eminent domain action, involving agency and landowners whose property
was condemned for the development of a certain street. The supreme court held that contributions made to
judge's successful campaign to retain his seat by casinos that stood to benefit from outcome of eminent domain
action did not constitute proper grounds for judge's disqualification.
Petition granted.
Bradford R. Jerbic, City Attorney, Philip R. Byrnes, Jr., Assistant City Attorney, and William P. Henry,
Senior Litigation Counsel, Las Vegas; Beckley Singleton Jemison Cobeaga & List and Daniel F.
Polsenberg, Las Vegas; and McDonough, Holland & Allen and Mark A. Wasser,
Sacramento, California, for Petitioner.
__________

4
Regarding petitioner's argument that the NRCP 11 order is legally insufficient because it fails to identify the
specific document or documents signed in violation of the rule, and fails to identify the specific attorney or
attorneys who violated the rule, we need not decide the issue. Were the order remanded for clarification of these
two points, the order would nevertheless constitute an abuse of discretion because of the erroneous view of the
law upon which it was based.
........................................
and Daniel F. Polsenberg, Las Vegas; and McDonough, Holland & Allen and Mark A. Wasser, Sacramento,
California, for Petitioner.
Glade L. Hall, Reno; and A. Grant Gerber, Elko, for Real Parties in Interest.
1. Prohibition.
Writ of mandamus was more appropriate than writ of prohibition in case of city redevelopment agency that sought to compel a
trial judge who disqualified himself from eminent domain action on basis that he received campaign contributions from a party
interested in outcome of action to return to case, because agency sought to control a district court's actions after an alleged manifest
abuse of discretion.
2. Judges.
A judge has a duty to preside to the conclusion of all proceedings, in the absence of some statute, rule of court, ethical standard, or
other compelling reason to the contrary.
3. Judges.
Contributions made to judge's successful campaign to retain his seat by casinos that stood to benefit from outcome of eminent
domain action, involving landowners and city redevelopment agency, did not constitute proper grounds for judge's disqualification
from such action. Contributions were not extraordinary in amount, and without more, constituted only an insignificant interest that did
not raise reasonable question as to judge's impartiality, and judge's minute order indicated that his recusal was made notwithstanding
the lack of actual or implied bias, prejudice, partiality, or impropriety. Code of Jud. Conduct, Canon 3E.
OPINION
Per Curiam:
SUMMARY
[Headnote 1]
The case underlying this original petition involves Harry, John, and Carol Pappas's successful request to
have Judge Mark R. Denton recuse himself from an eminent domain case involving the Pappases and the
City of Las Vegas Downtown Redevelopment Agency (the Agency), which condemned the Pappases'
property in order to develop the Fremont Street Experience project in downtown Las Vegas. The Pappases'
request was based on their conclusion that Judge Denton's impartiality might reasonably be questioned
under Nevada's Code of Judicial Conduct (NCJC) because Judge Denton had received campaign
contributions from Fremont Street casinos standing to benefit from the outcome of the case. Despite stating
that there existed no actual or implied prejudice,
........................................
prejudice, Judge Denton recused himself because of the contributions and in order to avoid the appearance of
impropriety. Judge Denton's decision triggered a chain reaction of subsequent recusals, prompting the Agency to
petition this court for a writ of mandamus or prohibition reinstating Judge Denton.
1
Because we conclude that
the campaign contributions did not constitute proper grounds for disqualification, we grant the Agency's petition.
STATEMENT OF FACTS
On November 19, 1993, the Agency filed a complaint in eminent domain against the Pappases in the Eighth
Judicial District. In this action, the Agency sought to obtain right, title, and interest to certain property in
downtown Las Vegas for its Fremont Street Experience redevelopment project. As part of the project, the
Agency planned to obtain the subject property and give it to the Fremont Street Experience Limited Liability
Company (the LLC) and the Fremont Street Experience Parking Corporation (the Parking Corp.).
Importantly, the LLC, and possibly the Parking Corp., is collectively owned by eight casinos on Fremont Street
that stand to benefit from the redevelopment project.
In August 1998, the underlying action was assigned to Judge Denton.
2
Later that same year, Judge Denton
conducted a successful campaign to retain his seat, during which time he received contributions ranging from
$150.00 to $2,000.00 from four casinos involved in or affiliated with the redevelopment project.
At a preliminary hearing on January 25, 1999, Judge Denton informed the parties of the contributions.
Judge Denton also stated that he did not think that the making of any of those contributions would influence
me one way or the other and that he did not feel any bias or prejudice whatsoever one way or another. At
the end of the hearing, Judge Denton and the parties agreed to reconvene on February 1, 1999, to resolve the
situation.
Immediately prior to the scheduled hearing on February 1, 1999, the Pappases filed an affidavit seeking to
disqualify Judge Denton. The affidavit cited NCJC Canon 3E(1)
3
to support the Pappases' claim that
Judge Denton's impartiality can reasonably be questioned because of the campaign
contributions and because two of the proposed witnesses were casino owners who had
donated to Judge Denton's campaign.
__________

1
While the Agency's petition alternatively requests a writ of prohibition, we conclude that a writ of
mandamus is more appropriate because the petitioner seeks to control a district court's actions after an alleged
manifest abuse of discretion. See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 637 P.2d 534 (1981)
(writ of mandamus is proper where district judge manifestly abuses discretion).

2
The Pappases' land was obtained for redevelopment purposes in 1994. Therefore, at this point in time, the
Pappases were disputing the amount they received in compensation, the lost rent and legal fees, and possible
punitive damages based on their alleged constitutional violation.

3
Canon 3E(1) provides, in relevant part, that a judge shall disqualify himself or herself in a proceeding in
which the judge's impartiality might reasonably be questioned, including instances where the judge has a
personal
........................................
Pappases' claim that Judge Denton's impartiality can reasonably be questioned because of the campaign
contributions and because two of the proposed witnesses were casino owners who had donated to Judge Denton's
campaign.
In order to allow the Agency to prepare a response, the court adjourned the matter. Two days later, however,
Judge Denton recused himself from the case and issued a minute order concluding that the decision to recuse
was in consonance with the spirit and substance of the commentary to NCJC 3 E(1). Moreover, Judge Denton
cited NCJC Canon 2
4
and concluded: Given the proffered appearance of impropriety,' and the need to avoid
the actual appearance of impropriety, this Court enters its RECUSAL, notwithstanding the lack of actual or
implied bias, prejudice, partiality, or impropriety.
Thereafter, three district court judges assigned to the case recused themselves, resulting in what the Agency
appropriately terms judicial pinball. The case has since been stayed pending the outcome of this writ petition
filed by the Agency on February 22, 1999, asking this court to issue a writ of mandamus compelling Judge
Denton to return to the case.
DISCUSSION
[Headnote 2]
As a general rule, a judge has a duty to preside to the conclusion of all proceedings, in the absence of
some statute, rule of court, ethical standard, or other compelling reason to the contrary. Ham v. District
Court, 93 Nev. 409, 415, 566 P.2d 420, 424 (1977); see also NCJC Canon 3B(1) (A judge shall hear and
decide matters assigned to the judge except those in which disqualification is required.). Further, a judge is
presumed to be impartial, and the party asserting a challenge carries the burden of establishing sufficient factual
and legal grounds warranting disqualification. See Hogan v. Warden, 112 Nev. 553, 559-60, 916P.2d 805, 809
(1996).
In the present case, Judge Denton asserted two grounds for recusal: (1) the proceeding was one in which the
judge's impartiality might reasonably be questioned under NCJC Canon 3E(1); and (2) his participation might
create an appearance of impropriety under NCJC Canon 2.
__________
bias or prejudice concerning a party, or where the judge has an economic or any other more than de minimis
interest that could be substantially affected by the proceeding.

4
Canon 2 provides that a judge shall avoid impropriety and the appearance of impropriety in all of the
judge's activities.
........................................
[Headnote 3]
In PETA v. Bobby Berosini, Ltd., 111 Nev. 431, 436, 894 P.2d 337, 340 (1995), we held that the NCJC,
including Canon 2, was not just a guide for the conduct of judges, but also provided substantive grounds for
judicial disqualification. In City of Las Vegas Downtown Redevelopment Agency v. Hecht, 113 Nev. 632, 940
P.2d 127 (1997) (Hecht I), however, we clarified that NCJC Canon 2 in and of itself does not serve as grounds
for disqualification. In particular, we held that the specific disqualification provisions of Canon 3(E), and
subsequent case law applying these provisions, should control over the broader statement of Canon 2. Hecht I,
113 Nev. at 636 n.2, 940 P.2d at 129 n.2; see also Las Vegas Downtown Redevelopment Agency v. Hecht, 113
Nev. 644, 650, 940 P.2d 134, 138 (1997) (Hecht II). Therefore, our analysis here is concerned with whether the
Pappases have shown sufficient factual and legal grounds under NCJC Canon 3E requiring Judge Denton's
disqualification.
NCJC Canon 3E(1) provides, in pertinent part:
A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might
reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal
knowledge of disputed evidentiary facts concerning the proceeding;
. . . .
(c) the judge knows that he or she . . . has an economic interest in the subject matter in controversy or
in a party to the proceeding or has any other more than de minimis interest that could be substantially
affected by the proceeding;
De minimis is then defined as: an insignificant interest that could not raise reasonable question as to a judge's
impartiality. NCJC Terminology (1998).
Further, we have held that whether a judge's impartiality can reasonably be questioned is an objective
question that this court reviews as a question of law using its independent judgment of the undisputed facts. See
In re Varain, 114 Nev. 1271, 1278, 969 P.2d 305, 310 (1998).
In the context of campaign contributions, we have recognized that a contribution to a presiding judge by a
party or an attorney does not ordinarily constitute grounds for disqualification. See In re Petition to Recall
Dunleavy, 104 Nev. 784, 769 P.2d 1271 (1988). Indeed, we commented that such a rule would severely and
intolerably obstruct the conduct of judicial business in a state like Nevada where judicial officers must run for
election and consequently seek campaign contributions. Id., 104 Nev. at 790, 769 P.2d at 1275;
........................................
769 P.2d at 1275; see also O'Brien v. State Bar of Nevada, 114 Nev. 71, 76 n.4, 952 P.2d 952, 955 n.4 (1998)
(judge serving on state bar board of governors was not disqualified from voting on appointment to commission
on judicial selection despite having received over $100,000.00 in campaign contributions from prospective
appointee and her partner).
In recognition of this recurring problem of campaign contributions, this court recently amended the
commentary to NCJC 3E(1) to include the following guidance: The mere receipt of a campaign contribution
from a witness, litigant or lawyer involved with a proceeding is not grounds for disqualification. NCJC Canon
3E(1) Commentary (2000).
In the present matter, the campaign contributions to Judge Denton, which ranged from $150.00 to $2,000.00,
are not extraordinary in amount and, without more, constitute only an insignificant interest that does not raise a
reasonable question as to a judge's impartiality. While we commend Judge Denton's efforts to carefully
balance his duty to preside with his duty to uphold the integrity of the judiciary, we conclude that the campaign
contributions to Judge Denton do not serve as grounds for disqualification under Canon 3E.
We note that Judge Denton's minute order indicated that his recusal was made notwithstanding the lack of
actual or implied bias, prejudice, partiality, or impropriety. Therefore, we see no reason why Judge Denton
cannot preside over the matter, and accordingly we grant the Agency's petition for a writ of mandamus.
5

CONCLUSION
We conclude that the contributions made to Judge Denton's campaign do not constitute grounds for
disqualification under NCJC Canon 3E. Accordingly, we grant the Agency's petition. The clerk of the court
shall issue a writ of mandamus compelling Judge Denton to preside over the district court proceedings.
6

__________

5
The Agency also contends that the Pappases' affidavit failed to meet the procedural requirements of NRS
1.235(1). Because we choose to resolve the matter on other grounds, we need not address this issue.

6
Lamentably, we recognize that the Pappases have in the past made certain public remarks concerning the
impartiality of the judiciary and may continue to do so as this matter proceeds. Although operating under such
circumstances may be difficult or disheartening, the judicial duties of a judge take precedence over all the
judge's other activities, and a judge shall hear and decide matters assigned to the judge except those in
which disqualification is required. NCJC Canon 3A and 3B(1). Indeed, if a party were allowed to selectively
disqualify a judge through what amounts to media-bullying, the very integrity and independence upon which the
judiciary depends would be undermined.
____________
116 Nev. 646, 646 (2000) Pengilly v. Rancho Santa Fe Homeowners
JAMES W. PENGILLY, and LORBER, BEDDOE & PENGILLY, Appellants, v. RANCHO SANTA FE
HOMEOWNERS ASSOCIATION, a Nevada Nonprofit Corporation; and DONNA FISCHER and
WILLIAM ROBINSON, Individually and on Behalf of Class Members at Rancho Santa Fe
Homeowners Association, Respondents.
No. 34352
August 18, 2000 5 P.3d 569
Appeal from an order of the district court holding appellants in contempt and imposing sanctions. Eighth
Judicial District Court, Clark County; Sally L. Loehrer, Judge.
Counsel and insurers for defendants in construction defect case were found to be in contempt by the district
court for failing to abide by terms of settlement agreement. Counsel appealed. The supreme court held that it did
not have jurisdiction over an appeal from a contempt order and that proper mode of review is by original writ
petition; overruling Poirier v. Board of Dental Examiners, 81 Nev. 384, 404 P.2d 1 (1965); abrogating Guerin v.
Guerin, 114 Nev. 127, 953 P.2d 716 (1998), Awad v. Wright, 106 Nev. 407, 794 P.2d 713 (1990).
Appeal dismissed for lack of jurisdiction.
Lorber, Beddoe & Pengilly, Las Vegas; Lionel Sawyer & Collins and David N. Frederick, Las Vegas, for
Appellants.
Vannah Costello Canepa Riedy & Rubino, Las Vegas, for Respondents.
1. Contempt.
Supreme court does not have jurisdiction over an appeal from a contempt order issued against party or non-party when no rule or
statute provides for such an appeal. Proper mode of review is by original writ petition; overruling Poirier v. Board of Dental Examiners,
81 Nev. 384, 404 P.2d 1 (1965); abrogating Guerin v. Guerin, 114 Nev. 127, 953 P.2d 716 (1998), Awad v. Wright, 106 Nev. 407, 794
P.2d 713 (1990).
No appeal may be taken unless permitted by rule or statute.
3. Contempt.
Whether a person is guilty of contempt is generally within the particular knowledge of the district court, and the district court's
order should not lightly be overturned.
........................................
OPINION
Per Curiam:
This appeal concerns the issue of the appropriate form of review of an order of contempta direct appeal
or an original petition for relief pursuant to NRS Chapter 34. We take this opportunity to clarify a
troublesome area of this court's jurisdictional case law. We conclude that, as no rule or statute authorizes an
appeal from a contempt order, this court does not have jurisdiction over an appeal from such an order.
Accordingly, the proper mode of review is by an original writ petition.
This appeal arises in a construction defect case. A settlement conference was held before the district
court, and a settlement was entered on the record. Thereafter, a settlement agreement was executed.
Subsequently, the parties disputed the terms of the settlement, and plaintiffs/respondents (Rancho Sante
Fe) filed a motion for an order to show cause, seeking to enforce the terms of the settlement. According to
Rancho Sante Fe, the defendants, their counsel (appellants James Pengilly and Lorber, Beddoe & Pengilly)
and defendants' insurers were not abiding by the settlement's terms. At a hearing held on Rancho Santa Fe's
motion, the district court determined that counsel and the insurers had breached the settlement agreement
and imposed sanctions of over $100,000. The written order entered after the hearing included a finding of
contempt against counsel and the insurers. Counsel then appealed.
It appeared that, in the past, this court had reviewed contempt orders by both writ petition and direct
appeal, but had not engaged in any meaningful analysis or discussion of which mode of review was proper.
Therefore, in this case, this court entered an order to show cause, directing appellants to file points and
authorities on the issue of whether a finding of contempt was properly challenged by direct appeal or writ
petition.
Appellants filed a response, in which they argue that based on this court's decisions in Guerin v. Guerin,
114 Nev. 127, 953 P.2d 716 (1998), and Awad v. Wright, 106 Nev. 407, 794 P.2d 713 (1990), this court has
jurisdiction over the appeal. Nevertheless, they ask that this court dismiss the appeal and instead consider the
matter in the context of a writ petition they previously filed, on the condition that they may supplement their
petition to provide authority on the specific issue of contempt.
1

__________

1
We note that if appellate jurisdiction were proper, then writ relief would be inappropriate. See Guerin,
114 Nev. at 131, 953 P.2d at 719 (noting that
........................................
At common law, there was no right of review of a contempt order. See Van Baalen v. Superior Court, County
of Maricopa, 508 P.2d 771 (Ariz. Ct. App. 1973) (interpreting statute providing that contempt was to be
punished in conformity with common law to preclude appeal). This rule has been changed in most jurisdictions
by statute or constitutional provision. See generally 17 C.J.S., Contempt 128 (1999). In some jurisdictions, a
right of review has been found to exist under the general supervisory power of a high court over lower courts.
See, e.g., State v. District Court, 278 P. 122 (Mont. 1929). Many jurisdictions differentiate between an order of
criminal contempt and an order of civil contempt in determining whether a particular order may be appealable.
See, e.g., State ex rel. Kandt v. North Platte Baptist Church, 365 N.W.2d 813 (Neb. 1985).
The particular mode of review, whether by writ petition or appeal, varies widely. For example, in Louisiana,
a contempt order is reviewable only by the supreme court upon application to its general supervisory
jurisdiction; there is no right of appeal, and the intermediate appellate court has no jurisdiction. See Moity v.
Mahfouz, 137 So. 2d 513 (La. Ct. App. 1961). Texas does not permit appeals from contempt orders. See Lamka
v. Townes, 465 S.W.2d 386 (Tex. Civ. App. 1971). California's intermediate appellate courts review contempt
proceedings on a petition for certiorari. See Nierenberg v. Superior Court, 130 Cal. Rptr. 847 (Ct. App. 1976).
New Jersey and Indiana permit appeals from contempt orders. See State v. Roberts, 515 A.2d 799 (N.J. Super.
Ct. App. Div. 1986); Jacobsen v. State, 384 N.E.2d 1041 (Ind. Ct. App. 1979).
In the past, this court has considered both appeals from contempt orders and writ petitions challenging
contempt orders, without explicitly considering which form of review was proper. Compare Guerin, 114 Nev.
127, 953 P.2d 716, and Awad, 106 Nev. 407, 794 P.2d 713 (considering appeals from contempt orders) with
Cunningham v. District Court, 102 Nev. 551, 729 P.2d 1328 (1986), and McCormick v. District Court, 67 Nev.
318, 218 P.2d 939 (1950) (considering petitions for extraordinary relief from contempt orders).
It appears that the only case in which this court explicitly considered the jurisdictional basis for an appeal
from a contempt order is Poirier v. Board of Dental Examiners, 81 Nev. 384, 404 P.2d 1 (1965). In Poirier, the
appellant was held in contempt for violating an injunction prohibiting him from advertising that he could or
would perform acts which constituted the practice of dentistry.
__________
an appeal is an adequate legal remedy); NRS 34.020 (providing that a writ of certiorari may issue only if there is
no appeal or other adequate remedy); NRS 34.170 (stating that a writ of mandamus may only issue if there is no
other adequate and speedy remedy).
........................................
could or would perform acts which constituted the practice of dentistry. Id. at 385, 404 P.2d at 1. The appellant
filed an appeal, and the respondents moved to dismiss the appeal for lack of jurisdiction. Id. at 385, 404 P.2d at
2. The Poirier court denied the motion, reasoning that a criminal contempt order was appealable as a conviction
for a crime over which the district court had original jurisdiction. Id. at 387, 404 P.2d at 2.
[Headnote 1]
We conclude that the reasoning in Poirier is flawed when the contempt proceeding is ancillary to an
underlying case. This court has appellate jurisdiction in all civil cases arising in district courts, and also on
questions of law alone in all criminal cases in which the offense charged is within the original jurisdiction of the
district courts. Nev. Const. art. 6, 4 (emphasis added). When the contempt proceeding is ancillary, then it is
not a criminal case in which an offense was charged. Rather, the proceeding is brought pursuant to NRS
Chapter 22, under the caption and case number of the underlying action. Thus Poirier incorrectly suggested that
jurisdiction was proper with respect to all criminal contempt orders.
[Headnote 2]
Jurisdictional rules go to the very power of this court to act. Rust v. Clark Cty. School District, 103 Nev.
686, 688, 747 P.2d 1380, 1382 (1987); accord Phillips v. Welch, 11 Nev. 187, 188 (1876) (Every court is
bound to know the limits of its own jurisdiction, and to keep within them.). This court has consistently
explained that unless permitted by rule or statute, no appeal may be taken. See Taylor Constr. Co. v. Hilton
Hotels, 100 Nev. 207, 678 P.2d 1152 (1984); Kokkos v. Tsalikis, 91 Nev. 24, 530 P.2d 756 (1975).
No rule or statute authorizes an appeal from an order of contempt. See NRAP 3A(b) (listing orders which
may be appealed); NRS Chapter 22 (concerning grounds and procedure for imposing contempt sanctions). We
therefore conclude that this court does not have jurisdiction over an appeal from a contempt order where no rule
or statute provides for such an appeal. Rather, contempt orders must be challenged by an original petition
pursuant to NRS Chapter 34.
2

Writ petitions are also more suitable vehicles for review of contempt orders. Particularly where the purpose
of the contempt order is to coerce compliance with the district court's orders,
__________

2
To the extent Poirier is inconsistent with this opinion, it is overruled. Further, we note that although
appellants in this case were not parties to the proceedings below, our analysis applies equally to cases in which
parties are sanctioned for contempt. Whether the contempt sanction is imposed on a nonparty or a party, the
proper way to challenge it is through a writ petition.
........................................
order is to coerce compliance with the district court's orders, it appears preferable for the district court to be able
to modify its orders to meet changing circumstances. A writ petition permits the district court this flexibility
because the court retains jurisdiction over the order during the pendency of the writ petition. In contrast, the
district court would be divested of jurisdiction to modify or vacate the contempt order once a notice of appeal
had been filed. See Rust, 103 Nev. at 688, 747 P.2d at 1382.
[Headnote 3]
Additionally, the standard of review in a writ petition is appropriate to the review of a contempt order.
Whether a person is guilty of contempt is generally within the particular knowledge of the district court, and the
district court's order should not lightly be overturned. A writ of mandamus is available to control a manifest
abuse of discretionfor example, when the order purportedly violated does not clearly prohibit the conduct
engaged in by the contemnor. See Cunningham, 102 Nev. at 559-60, 729 P.2d at 1333-34. A writ of prohibition
is available where the district court clearly exceeded its jurisdictionfor example, when a finding of indirect
contempt is not based upon a proper affidavit. See Awad, 106 Nev. at 409, 794 P.2d at 714. These standards
provide a fitting level of deference for the review of contempt orders.
As this court lacks jurisdiction over this appeal, the appeal is dismissed.
3

____________
116 Nev. 650, 650 (2000) Fritz Hansen A/S v. Dist. Ct.
FRITZ HANSEN A/S, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE GARY L. REDMON,
District Judge, Respondents, and ROBERT P. GUSTAVSON, RAMPARTS, INC., and
INTERNATIONAL CONTRACT FURNISHINGS, INC., Real Parties in Interest.
No. 35252
August 21, 2000 6 P.3d 982
Motion for a stay of district court proceedings pending the resolution of an original petition for a writ of
prohibition.
Alleged tortfeasor petitioned for writ of prohibition challenging a district court order that denied its motion
to quash service of process for lack of personal jurisdiction,
__________

3
We note that appellants have already filed a petition for extraordinary relief, and the merits of their challenge
to the contempt order will be addressed in that proceeding.
The Honorable Cliff Young, Justice, voluntarily recused himself from participation in the decision of this
appeal.
........................................
process for lack of personal jurisdiction, and moved to stay district court proceedings pending resolution of the
petition. The supreme court held that: (1) it would abrogate general/special appearance doctrine, and (2)
petitioner was not entitled to stay.
Motion denied.
Hunterton & Associates and Terry John Care, Las Vegas; and Jones Day Reavis & Pogue and Jeffrey G.
Close, Chicago, Illinois, for Petitioner.
Smith Larsen & Wixom and Stewart C. Fitts, Las Vegas; Law Office of V. Andrew Cass and Michael R. Hall,
Las Vegas; and Amesbury & Schutt, Las Vegas, for Real Parties in Interest.
1. Appearance.
Supreme court would abrogate the doctrine of special/general appearances. NRCP 12(b).
Before a defendant files a responsive pleading such as an answer, that defendant may move to dismiss for lack of personal
jurisdiction, insufficiency of process, and/or insufficiency of service of process, and such a defense is not waived by being joined with
one or more other defenses. NRCP 12(b).
3. Pleading; Process.
A defendant may raise its defenses, including those relating to jurisdiction and service, in a responsive pleading. Objections to
personal jurisdiction, process, or service of process are waived, however, if not made in a timely motion or not included in a responsive
pleading such as an answer. NRCP 12(b), (g), (h)(1).
4. Pleading; Process.
To avoid waiver of a defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process,
the defendant should raise its defenses either in an answer or pre-answer motion. NRCP 12(b).
Rules requiring a party to seek a stay in district court before seeking a stay in supreme court applies to writ petitions when the
order the petition seeks to challenge is one issued by a district court. NRAP 8(a).
6. Action; Pleading.
Stay of district court proceedings pending resolution of alleged tortfeasor's writ petition challenging denial of its motion to quash
service of process for lack of personal jurisdiction was not warranted. Tortfeasor would not waive its jurisdictional defense by
answering after its motion to quash was denied, would not suffer irreparable or serious injury if stay was denied, and failed to
demonstrate that writ petition raised a substantial legal issue. NRAP 8(a).
In deciding whether to issue a stay, supreme court generally considers: (1) whether the object of the appeal or writ petition will be
defeated if the stay is denied, (2) whether appellant/petitioner will suffer irreparable or serious injury if the stay is denied, (3) whether
respondent/real party in interest will suffer irreparable or serious injury if the stay is granted,
........................................
granted, and (4) whether appellant/petitioner is likely to prevail on the merits in the appeal or writ petition. NRAP 8(c).
8. Appearance.
Alleged tortfeasor's appearance, after its motion to quash service of process for lack of personal jurisdiction was denied, would not
amount to a waiver of its challenge to the district court's jurisdiction. NRCP 12(b).
Although, when moving for a stay pending an appeal or writ proceedings, a movant does not always have to show a probability of
success on the merits, the movant must present a substantial case on the merits when a serious legal question is involved and show that
the balance of equities weighs heavily in favor of granting the stay. NRAP 8(a).
OPINION
Per Curiam:
This is an original petition for a writ of prohibition challenging a district court order that denied a motion
to quash service of process for lack of personal jurisdiction. Petitioner has filed a motion for a stay of the
district court proceedings pending resolution of the petition so that it will not be forced to risk making a
general appearance by answering the complaint filed against it. We conclude that the special/general
appearance doctrine should be abrogated in light of the 1998 amendments to NRCP 12(b) and several recent
decisions of this court, and that a stay is not warranted.
Real party in interest Robert P. Gustavson filed a complaint in the district court against real party in
interest Ramparts, Inc., alleging that he was injured when a chair broke at its property, the Luxor Hotel and
Casino. Ramparts then filed a third-party complaint against real party in interest International Contract
Furnishings, Inc. (ICF), the vendor of the chair. ICF subsequently filed its own third-party complaint
against the chair's manufacturer, petitioner Fritz Hansen A/S. Fritz Hansen moved to quash service of
process, arguing that the district court lacked personal jurisdiction over it. Without holding an evidentiary
hearing, the district court denied the motion. Shortly thereafter, ICF served a notice of its intention to take
default; that same day, Fritz Hansen filed its petition in this court. Fritz Hansen later filed a motion in the
district court for a stay of proceedings, pending resolution of the writ petition, which the district court denied.
Fritz Hansen now seeks a stay in this court.
Fritz Hansen is understandably concerned that if the litigation proceeds and it answers the complaint to
avoid entry of default, it will have been deemed to have made a general appearance,
........................................
will have been deemed to have made a general appearance, thus waiving its contention that the district court
lacks jurisdiction over it. This court has long endorsed the special/general appearance doctrine, which is the
basis for much confusion and complexity regarding jurisdictional defenses and procedures in Nevada.
Previously, we have explained that [a] general appearance is entered when a person (or the person's
attorney) comes into court as party to a suit and submits to the jurisdiction of the court. A special appearance is
entered when a person comes into court to test the court's jurisdiction or the sufficiency of service. Milton v.
Gesler, 107 Nev. 767, 769, 819 P.2d 245, 247 (1991). More specifically, when a defendant requests a remedy
in addition to relief from jurisdictional defects or defective service of process, the defendant enters a general
appearance and submits to the jurisdiction of the court. Id. at 771 n.6, 819 P.2d at 248 n.6. On many occasions,
we have held that litigants have undertaken some act that is inconsistent with appearing specially, thus subjecting
themselves to the jurisdiction of the district court. See, e.g., Davis v. District Court, 97 Nev. 332, 629 P.2d 1209
(1981) (holding that objecting to a motion for leave to file a second amended complaint and seeking attorney's
fees as a condition for leave to amend the complaint was a general appearance); Havas v. Long, 85 Nev. 260,
454 P.2d 30 (1969) (noting that filing a motion for summary judgment was a general appearance); Rahn v.
Searchlight Mercantile Co., 56 Nev. 289, 49 P.2d 353 (1935) (holding that signing a stipulation extending the
time to answer or otherwise respond to a complaint was a general appearance).
The federal courts have concluded that the special/general appearance doctrine was abolished when they
adopted Federal Rule of Civil Procedure 12, the origin of NRCP 12. The leading treatise on federal procedure
observes:
Prior to the federal rules, the practice was to appear specially for the purpose of objecting by motion to
the jurisdiction of the court, the venue of the action, or an insufficiency of process or service of process; a
failure to follow the correct procedure for doing so often resulted in a waiver of the defense. There no
longer is any necessity for appearing specially to challenge personal jurisdiction, venue, or service of
process. This is made clear by the absence in Rule 12 of any reference to either a general or special
appearance and the express provisions in subdivision (b) to the effect that every defense may be made
either in the responsive pleading or by motion, and that no defense or objection is waived by being joined
with any other defense or objection in a responsive pleading or motion. Thus, technical distinctions
between general and special appearances have been abolished and no end is accomplished by
retaining the terms in federal practice.
........................................
end is accomplished by retaining the terms in federal practice.
5A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure 1344 (1990) (footnotes omitted);
accord S.E.C. v. Wencke, 783 F.2d 829, 832 n.3 (9th Cir. 1986) (noting that Federal Rule of Civil Procedure
12 abolished the distinction between general and special appearances when the Federal Rules were adopted in
1938).
When the Nevada Rules of Civil Procedure were adopted, however, NRCP 12 was modified from the federal
rule so that it could co-exist with the special/general appearance doctrine. At that time, and until amendments in
1998, NRCP 12(b) provided that
[n]o defense or objection is waived by being joined with one or more other defenses or objections in a
responsive pleading or motion, except defenses numbered (2)-(4) [lack of jurisdiction over the person,
insufficiency of process, and insufficiency of service of process] are waived if joined with one or more
defenses other than defenses (2)-(4), or by further pleading after denial of such defenses.
Barnato v. Dist. Court, 76 Nev. 335, 338, 353 P.2d 1103, 1104 (1960). The Barnato court expressly rejected the
notion that NRCP 12's adoption abrogated the special/general appearance doctrine: Rule 12(b) as adopted in
this state has not changed the general rule in existence at the time of its adoption which is to the effect that a
defendant who requests relief additional to that necessary to protect him from defective service of process
renders his appearance general. Id. at 340, 353 P.2d at 1105. Consequently, Barnato concluded that a defendant
who had moved to dismiss on jurisdiction and insufficiency of service grounds had made a general appearance,
thereby waiving the jurisdiction defense. Id.
Although this court strictly adhered to the reasoning in Barnato for many years,
1
we have more recently
limited the application of the special/general appearance doctrine. For example, Barnato and its progeny were
overruled by Indiana Insurance Co. v. District Court, 112 Nev. 949, 920 P.2d 514 (1996), which held that
personal jurisdiction could be challenged by a motion to dismiss under NRCP 12(b)(2).
2
Similarly, Doyle v.
Jorgensen, 82 Nev. 196, Nev. 196, 414 P.2d 707 {1966),
__________

1
See, e.g., Silver v. Telerent Leasing, 105 Nev. 30, 768 P.2d 879 (1989); Deros v. Stern, 87 Nev. 148, 483
P.2d 648 (1971); Benson v. District Court, 85 Nev. 327, 454 P.2d 892 (1969).

2
Even though in Indiana Insurance we held that a motion to dismiss for lack of personal jurisdiction was no
longer a general appearance, we also continued to embrace the special/general appearance doctrine and stated
that [a] request for relief other than a challenge to the court's jurisdiction, . . . such as a request for relief
premised on the court's having jurisdiction over the parties, still constitutes a general appearance. Indiana
Insurance, 112 Nev. at 951, 920 P.2d at 516.
........................................
Nev. 196, 414 P.2d 707 (1966), which held that a motion under NRCP 60(b)(1) to set aside a judgment that was
void for ineffective service was a general appearance, was later overruled by Gassett v. Snappy Car Rental, 111
Nev. 1416, 906 P.2d 258 (1995), which held that filing a motion to set aside a void judgment was not a general
appearance.
Additionally, in another recent opinion, we determined that once the personal jurisdiction issue has been
initially raised, the district court need not resolve it completely until trial. Trump v. District Court, 109 Nev. 687,
692-93, 857 P.2d 740, 743-45 (1993). In Trump, we explained that if a defendant challenges personal
jurisdiction, the plaintiff may demonstrate jurisdiction in one of two ways. First, the plaintiff may establish
personal jurisdiction over the defendant by preponderance of the evidence at an evidentiary hearing.
Alternatively, the plaintiff may make a prima facie showing of jurisdiction before trial commences, and then
must prove jurisdiction at trial by a preponderance of the evidence. Id.
Although we did not address the special/general appearance doctrine in Trump, we later stated that so long
as the personal jurisdiction issue is properly presented to the district court prior to trial, a defendant does not
waive the right to challenge jurisdiction by making an appearance at trial and arguing the case on the merits.
Hospital Corp. of America v. Dist. Court, 112 Nev. 1159, 1161 n.2, 924 P.2d 725, 726 n.2 (1996).
3
Thus, a
conflict was created with respect to the procedure outlined in Trump and the doctrine of special/general
appearances, as reflected in NRCP 12(b) as it then existed.
In 1998, following our decision in Trump, we amended NCRP 12(b) so that it became consistent with the
federal rule. In particular, NRCP 12(b) was revised to provide that the defenses of lack of jurisdiction and
insufficient process and service of process are not waived by being joined with other defenses and objections in
a responsive pleading or pre-pleading motion. The rule now provides, in pertinent part, as follows:
Every defense, in law or fact . . . shall be asserted in the responsive pleading thereto if one is required,
except that the following defenses may at the option of the pleader be made by motion: . . . . (2) lack of
jurisdiction over the person, (3) insufficiency of process, (4) insufficiency of service of process . . . . No
defense or objection is waived by being joined with one or more other defenses or
objections in a responsive pleading or motion.
__________

3
The approach in Trump and Hospital Corp. is consistent with NRCP 12(d), which provides that [t]he
defenses specifically enumerated [in NRCP 12(b)(1)-(6)], whether made in a pleading or by motion . . . shall be
heard and determined before trial on application of any party, unless the court orders that the hearing and
determination thereof be deferred until the trial.
........................................
joined with one or more other defenses or objections in a responsive pleading or motion.
NRCP 12(b).
[Headnote 1]
In light of these changes to Rule 12(b), we now abrogate the doctrine of special/general appearances. As the
Ninth Circuit has recognized, the express language and purpose of Rule 12 . . . seeks to consolidate all pre-trial
defenses and objections by eliminating the distinction between general and special appearances. Martens v.
Winder, 341 F.2d 197, 200 (9th Cir. 1965). The amendments to NRCP 12 have abolished
the age-old distinction between general and special appearances. A defendant need no longer appear
specially to attack the court's jurisdiction over him. He is no longer required at the door of the . . .
courthouse to intone that ancient abracadabra of the law, de bene esse, in order by its magic power to
enable himself to remain outside even while he steps within. He may now enter openly in full confidence
that he will not thereby be giving up any keys to the courthouse door which he possessed before he came
in. This, of course, is not to say that such keys must not be used promptly.
Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871, 874 (3d Cir. 1944), quoted in Wright &
Miller, 1344, at 171. Because any technical differences between general and special appearances no longer
exist under Rule 12, the doctrine has no remaining vitality in Nevada. It will no longer serve as a trap for the
unwary. See Paul A. Bible, Special Appearances[:] Trap for the Unwary, 43 Inter Alia 16 (1978). Our
conclusion today is consistent with the procedure outlined in Trump and Hospital Corp., as well as our prior
retreat from a rigid application of the general/special appearance doctrine.
[Headnotes 2-4]
Now, before a defendant files a responsive pleading such as an answer, that defendant may move to dismiss
for lack of personal jurisdiction, insufficiency of process, and/or insufficiency of service of process, and such a
defense is not waived by being joined with one or more other defenses. Alternatively, a defendant may raise its
defenses, including those relating to jurisdiction and service, in a responsive pleading. Objections to personal
jurisdiction, process, or service of process are waived, however, if not made in a timely motion or not included
in a responsive pleading such as an answer.
4
See NRCP 12(g) and (h)(1). Thus, to avoid waiver of a defense
of lack of jurisdiction over the person,
__________

4
Defenses under NRCP 12(b) are subject to waiver if not raised promptly. NRCP 12(g) provides that any
Rule 12 motion may be joined with any other
........................................
of a defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of
process, the defendant should raise its defenses either in an answer or pre-answer motion. See NRCP 12;
Dougan v. Gustaveson, 108 Nev. 517, 835 P.2d 795 (1992), abrogated in part on other grounds by Scrimer v.
District Court, 116 Nev. 507, 998 P.2d 1190 (2000).
Fritz Hansen's stay motion
[Headnotes 5, 6]
This court's rules generally require a party to seek a stay in the district court before seeking a stay in this
court. NRAP 8(a). While this rule applies on its face to appeals, the requirement is a sound one that should also
apply to writ petitions when the order the petition seeks to challenge is one issued by a district court. Fritz
Hansen fulfilled this requirement by unsuccessfully moving for a stay in the district court.
[Headnote 7]
In deciding whether to issue a stay, this court generally considers the following factors:
(1) Whether the object of the appeal or writ petition will be defeated if the stay is denied;
(2) Whether appellant/petitioner will suffer irreparable or serious injury if the stay is denied;
(3) Whether respondent/real party in interest will suffer irreparable or serious injury if the stay is
granted; and
(4) Whether appellant/petitioner is likely to prevail on the merits in the appeal or writ petition.
See NRAP 8(c); Kress v. Corey, 65 Nev. 1, 189 P.2d 352 (1948).
The object of the writ petition
[Headnote 8]
First, the object of the writ petition will not be defeated if the stay is denied. Fritz Hansen will not waive its
jurisdictional defense by answering after its motion to quash was denied; as Fritz Hansen timely challenged
jurisdiction, Rule 12's waiver provisions do not apply. Additionally, in denying Fritz Hansen's motion to quash
without an evidentiary hearing, the district court presumably applied a prima facie standard of review, and the
district court implicitly ordered that the hearing and determination of personal jurisdiction
be deferred to trial.
__________
Rule 12 motion, but that if a defense or objection is omitted from a motion, the movant may not later make a
motion based on the omitted defense or objection. NRCP 12(h)(1) explains that defenses relating to jurisdiction
and sufficiency of process or service of process are generally waived if not raised by motion under this rule
[or] included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter
of course.
........................................
trict court implicitly ordered that the hearing and determination of personal jurisdiction be deferred to trial. See
Hospital Corp., 112 Nev. at 1161 n.2, 924 P.2d at 726 n.2; Trump, 109 Nev. at 692-93, 857 P.2d at 743-45.
Hence, Fritz Hansen's appearance, after its motion to quash was denied, would not amount to a waiver of its
challenge to the district court's jurisdiction. Accordingly, the first stay factor does not suggest that a stay is
warranted.
Irreparable or serious harm
Fritz Hansen would not suffer irreparable or serious injury if the stay is denied. It argues that it should not
be required to participate needlessly in the expense of lengthy and time-consuming discovery, trial
preparation, and trial. Such litigation expenses, while potentially substantial, are neither irreparable nor
serious. See, e.g., Dixon v. Thatcher, 103 Nev. 414, 415, 742 P.2d 1029, 1029-30 (1987) (noting that, with
respect to injunctive relief, irreparable harm is harm for which compensatory damages would be inadequate,
such as the sale of a home at trustee's sale, because real property is unique); Berryman v. Int'l Bhd. Elec.
Workers, 82 Nev. 277, 280, 416 P.2d 387, 389 (1966) (stating that with respect to harm, there should be a
reasonable probability that real injury will occur if the injunction does not issue); see Wisconsin Gas Co. v.
F.E.R.C., 758 F.2d 669, 674 (D.C. Cir. 1985) (noting that [m]ere injuries, however substantial, in terms of
money, time and energy necessarily expended in the absence of a stay are not enough' to show irreparable
harm) (quoting Virginia Petroleum Job. Ass'n v. Federal Power Com'n, 259 F.2d 921, 925 (D.C. Cir. 1958)); cf.
Sobol v. Capital Management, 102 Nev. 444, 446, 726 P.2d 335, 337 (1986) (concluding, in the context of an
injunction, that acts committed without just cause which unreasonably interfere with a business or destroy its
credit or profits, may do an irreparable injury).
Additionally, it does not appear from the documents before us that ICF would suffer irreparable or serious
injury if the stay were granted. Nevertheless, the underlying proceedings could be unnecessarily delayed by a
stay, particularly where the district court has made only a preliminary determination as to personal jurisdiction,
and the issue remains for trial.
Likelihood of success on the merits
[Headnote 9]
Finally, we conclude that Fritz Hansen has not shown that it is likely to prevail on the merits. Its argument,
that this court may have erred in its discussion of certain personal jurisdiction principles in Judas Priest v.
District Court, 104 Nev. 424, 760 P.2d 137 (1988), runs contrary to this court's well-established case law.
........................................
Thus, Fritz Hansen cannot be deemed likely to demonstrate that extraordinary relief is warranted. Although,
when moving for a stay pending an appeal or writ proceedings, a movant does not always have to show a
probability of success on the merits, the movant must present a substantial case on the merits when a serious
legal question is involved and show that the balance of equities weighs heavily in favor of granting the stay.
Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. 1981). Here, Fritz Hansen has not demonstrated that its writ petition
raises a substantial legal question; additionally, the other stay factors do not militate in Fritz Hansen's favor.
Accordingly, we deny Fritz Hansen's motion for a stay.
5

____________
116 Nev. 659, 659 (2000) Flores v. State
JOSE FLORES, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 33186
August 21, 2000 5 P.3d 1066
Appeal from a judgment of conviction pursuant to a jury verdict of one count of first degree murder with the
use of a deadly weapon. Appellant was sentenced to two consecutive terms of life imprisonment without the
possibility of parole. Eighth Judicial District Court, Clark County; Michael L. Douglas, Judge.
Defendant was convicted in the district court of first degree murder with the use of a deadly weapon, and he
appealed. The supreme court, Shearing, J., held that (1) evidence that co-defendant had been convicted of earlier
murder in which same gun was used was not admissible against defendant, and (2) detective's testimony
concerning his encounters with defendant and co-defendant in course of his work for police department's gang
unit was admissible.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James
Tufteland, Chief Deputy District Attorney, and Michael N. O'Callaghan, Deputy District Attorney, Clark
County, for Respondent.
1. Criminal Law.
Evidence of another crime is not admissible to prove the character of a person in order to show that he acted in conformity
therewith on a particular occasion.
__________

5
On January 31, 2000, we granted a temporary stay in order to consider Fritz Hansen's motion. In
light of our decision, we vacate the temporary stay.
........................................
particular occasion. However, other crime evidence may be admissible for other purposes, such as to prove identity or motive. NRS
48.045(2).
2. Criminal Law.
Evidence of other bad acts may be admissible to provide necessary context under the complete story doctrine. NRS 48.035.
3. Criminal Law.
Evidence that co-defendant had been convicted of earlier murder in which same gun was used was not admissible against
defendant in instant murder prosecution. Danger of unfair prejudice created by introducing evidence of prior murder by co-defendant
far outweighed tenuous probative value on issue of defendant's identity.
4. Criminal Law.
Detective's testimony concerning his encounters with defendant and co-defendant in course of his work for police department's
gang unit was admissible in murder prosecution, where both defendant and co-defendant had admitted their gang membership,
virtually all witnesses testified without objection regarding gang affiliation, and evidence of gang unit's involvement was limited to
identification of photographs with no other adverse inferences.
OPINION
Jose Flores and Carlos Escobar were charged with murder with the use of a deadly weapon in the
shooting death of Francisco Cabral. Flores went to trial separately and a jury found him guilty of first
degree murder with the use of a deadly weapon. Flores appeals from the judgment of conviction. He
alleges that the trial court erred in admitting certain evidence, including evidence that Escobar had been
previously convicted of a murder and that Flores and Escobar were affiliated with a gang.
FACTS
Two men approached Francisco Cabral and his fiance, Charmaine Felix, as they walked together on a
Las Vegas street at night on October 17, 1995. Felix was pushing her infant son in a baby carriage. One of
the men asked Cabral, Where are you from? Cabral answered L.A. The man who had not spoken fired
two shots at Cabral with a Glock 9mm semi-automatic handgun. One of the bullets hit Cabral in the head; he
fell to the ground and died minutes later. The two men ran away.
On November 3, 1995, Felix tentatively identified Flores from a photo lineup. She said she was almost
seventy-five percent sure the person in the photo was the shooter in the Cabral killing. She also stated the
shooter was the taller man, even though at trial it was clear that Escobar was the taller of the two.
........................................
was clear that Escobar was the taller of the two. She was unable to identify the other man from another photo
line-up although that photo line-up included Escobar. On November 8, 1995, she assisted a police artist in
preparing a drawing of the second man. In April 1997, Felix was shown another photo line-up which included a
computer-enhanced photograph of Escobar. A hat and goatee, as previously described by Felix, had been added
to the photograph of Escobar. This time she identified Escobar.
On February 14, 1997, the police recovered the Glock 9mm handgun used in the Cabral shooting in an
apparently unrelated incident. The man from whom the gun was recovered denied knowing Flores. Ballistic tests
showed the handgun was the same one used in both the Cabral shooting and the killing of Daniel Arrequin on
September 28, 1995, three weeks before the Cabral killing. Escobar was identified as the shooter in the Arrequin
killing and, by the time of Flores' trial, had already been convicted of the Arrequin murder. Wilfredo Sanchez
had also been shot in the same incident, but survived. Sanchez testified at Flores' trial that Escobar approached
him and asked Where are you from? before shooting him. Sanchez testified that he understood the question to
mean, What gang are you in? Sanchez did not answer Escobar, but at trial Sanchez admitted to being a gang
member.
Felix testified at trial that Cabral told her he was in a gang. Felix also identified Flores and Escobar as the
two men who approached her when Cabral was killed. Other testimony established that Flores and Escobar were
friends; they lived together for a time, and Flores visited Escobar several times in jail. Police Detective Fred
Garcia testified that he met Flores and Escobar in his work with the police gang unit, although such contact did
not necessarily imply criminal activity. Flores also gave a taped statement to the police, which the jury heard in
court, in which he admitted that he had been a gang member.
DISCUSSION
Admissibility of prior murder
[Headnote 1]
Flores argues the trial court erred in admitting evidence of Escobar's prior murder of Arrequin against him.
Evidence of another crime is not admissible to prove the character of a person in order to show that he acted in
conformity therewith on a particular occasion. See NRS 48.045(2). Other crimes, however, may be admissible
for other purposes, such as to prove identity or motive. Id. In the district court, the State argued in a motion in
limine that the murder conviction of Escobar was admissible to corroborate the identification of Escobar. This
argument on the motion was made before the trials of Escobar and Flores were severed.
........................................
motion was made before the trials of Escobar and Flores were severed. The district court, in its ruling that the
evidence was admissible as to Escobar, stated [a]s to how that plays with Mr. Flores, that is a difficulty. . . . So
for limited purposes it can be used. Not necessarily against Mr. FLORES, because he didn't have the gun at the
earlier setting but nonetheless it's part of the story and the jury should be entitled to hear that, for whatever it's
worth.
[Headnote 2]
The State now argues that the evidence of Escobar's murder of Arrequin is admissible under the complete
story doctrine. Evidence of other bad acts may be admissible to provide necessary context under the complete
story doctrine. See NRS 48.035.
1
We conclude, however, that the complete story doctrine is not implicated on
the facts of this case. There is no basis for suggesting that the Arrequin killing was so interconnected with the
Cabral killing that a witness could not describe the Cabral killing without referring to the Arrequin killing. See
Bletcher v. State, 111 Nev. 1477, 1480, 907 P.2d 978, 980 (1995) (admitting evidence of other crime was
reversible error).
The State also argues the evidence of the Arrequin murder is admissible to show motive. There is no
evidence in the record to support that argument. There is evidence that all the victims and both accused killers
were gang members, and the same question, apparently related to gang membership, was asked in each case.
Why that would provide motivation for the killing, however, is mere speculation, not evidence or a legitimate
inference from the evidence.
[Headnote 3]
The relevant argument for admitting Escobar's participation in the Arrequin murder into evidence against
Flores is to help corroborate the identity of Flores. Linking the gun used in the Cabral killing to the gun Escobar
used in the Arrequin killing and then linking Flores to Escobar does have some relevance on the issue of Flores'
identity. According to NRS 48.035(1), however, even if the evidence of Escobar's prior bad act was relevant, the
district court was still obligated to determine whether its probative value was substantially outweighed by the
danger of unfair prejudice.
__________

1
The complete story doctrine is codified in NRS 48.035(3), which provides:
Evidence of another act or crime which is so closely related to an act in controversy or a crime charged
that an ordinary witness cannot describe the . . . crime charged without referring to the other act or crime
shall not be excluded, but at the request of an interested party, a cautionary instruction shall be given
explaining the reason for its admission.
........................................
See Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985). We hold the district court abused its
discretion by admitting the prior murder by Escobar in the Flores trial. The danger of unfair prejudice created by
introducing a prior murder by Flores' friend and co-defendant far outweighed the tenuous probative value on the
issue of Flores' identity. Furthermore, the fact that the same gun allegedly used by Flores was previously in the
hands of his partner Escobar could have been admitted without ever referring to the prior murder.
The district court did not reconsider the admissibility of Escobar's prior bad act after Escobar's trial was
severed, despite express reservations about its admissibility as to Flores when the motion in limine was granted.
No limiting instruction was given. The probative value of the evidence for permissible purposes was minimal,
while the danger of unfair prejudice was substantial. It was manifest error to admit the murder by Escobar into
evidence in the severed trial of Flores.
[Headnote 4]
Flores also argues that Detective Garcia's testimony concerning his encounters with Flores and Escobar in the
course of his work for the gang unit was improperly admitted. We disagree. Garcia's testimony related to the
identification of Flores and Escobar, and their association, through a series of photographs taken by the gang
unit of the Metropolitan Police Department. Flores admitted to having been a gang member and Garcia testified
that the fact that the gang unit took the photograph did not mean that a criminal act was involved. The evidence
of the gang unit's involvement was thus properly limited to identification of photographs with no other adverse
inferences. Futhermore, virtually all the witnesses testified regarding gang affiliation without objection by
counsel, so the fact that a gang unit might have identified the defendant is not any more prejudicial than the gang
affiliation. The district court did not abuse its discretion in admitting the testimony of a gang unit officer.
We have considered the other arguments on appeal and find them to be without merit. In view of the error in
admitting the evidence of the murder committed by Escobar against Flores, we reverse the judgment of
conviction and remand the case to the district court for further proceedings.
____________
116 Nev. 664, 664 (2000) Cordova v. State
CLYDE CORDOVA, JR., Appellant, v. THE STATE OF NEVADA, Respondent.
No. 33873
August 21, 2000 6 P.3d 481
Appeal from a judgment of conviction, pursuant to a jury verdict, of second-degree murder with the use of a
deadly weapon. Second Judicial District Court, Washoe County; Steven R. Kosach, Judge.
Defendant was convicted in the district court of second-degree murder with the use of a deadly weapon, and
he appealed. The supreme court held that: (1) instruction defining malice was not plainly erroneous, (2)
enhancement of defendant's sentence based upon use of deadly weapon was not precluded by statute, and (3) any
error in admitting detective's testimony that he believed defendant's confession was sincere was harmless.
Affirmed.
John P. Calvert, Reno, for Appellant.
Hatlestad, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Failure to object during trial generally precludes appellate consideration of an issue.
2. Homicide.
Jury instruction in second-degree murder prosecution which stated that malice shall be implied when no considerable provocation
appears, or when all the circumstances of the killing show an abandoned and malignant heart, was not plainly erroneous. Instruction
used statutory language, and jury was properly instructed on presumption of innocence and State's burden to prove every element of
crime charged beyond reasonable doubt. NRS 200.020(2).
3. Sentencing and Punishment.
Offense of second-degree murder did not include use of a firearm as essential element, and thus statute authorizing sentence
enhancement imposed for use of deadly weapon unless use of firearm was essential element of offense for which defendant was
convicted did not preclude imposition of enhancement for defendant convicted of second-degree murder based upon his shooting
through closed front door of victim's apartment. NRS 193.165(1).
4. Criminal Law.
Any error in admitting detective's testimony on redirect examination that he believed defendant's confession that he acted alone in
committing murder was sincere was harmless, where detective did not testify as expert witness,
........................................
expert witness, defense counsel on cross-examination initiated inquiry into detective's experience regarding false confessions, and
defendant's assertion that he confessed falsely to take blame for his friend was not plausible.
5. Criminal Law.
An expert may not comment on a witness's veracity or render an opinion on a defendant's guilt or innocence.
OPINION
Per Curiam:
A jury found appellant Clyde Cordova, Jr., guilty of second-degree murder with the use of a deadly
weapon. Cordova contends that the jury instruction defining implied malice was erroneous, the enhancement
for use of a deadly weapon does not apply in this case, and a witness for the State improperly testified
regarding Cordova's veracity.
FACTS
Early in the morning on March 11, 1997, there was a knock at the door of Richard Harding's apartment
on Kietzke Avenue in Reno. Harding was present with other residents of the apartment and some visitors.
Harding approached the door and asked, Who is it? Several bullets were then fired through the door. Two
struck Harding, and he died within a short time. Police recovered nine nine-millimeter shell casings outside
the apartment.
A number of people had visited the apartment that night, including Cordova, and alcohol and marijuana
had been consumed. The next day, after questioning Cordova, police obtained a warrant and searched the
apartment of Damian Hodson. They found three handguns, including the nine-millimeter pistol that was
used to kill Harding. Hodson told police that he had loaned the gun to Cordova the night before.
After further questioning, Cordova confessed to police that he had obtained the pistol from Hodson, gone
to the victim's apartment, knocked on the door, and then fired through it. Cordova had been drinking alcohol
and felt that the occupants of the apartment had insulted him earlier.
The jury found Cordova guilty of second-degree murder with the use of a deadly weapon. The district
court entered judgment accordingly and sentenced him to two consecutive terms of life imprisonment with
the possibility of parole.
........................................
DISCUSSION
The jury instruction defining implied malice
Jury instruction number 14 stated: Malice shall be implied when no considerable provocation appears, or
when all the circumstances of the killing show an abandoned and malignant heart. Cordova claims that this
instruction was improper because the word shall creates an impermissible mandatory presumption, relieving
the State of its burden of proof.
[Headnotes 1, 2]
Cordova failed to object to the instruction below. Failure to object during trial generally precludes
appellate consideration of an issue. Rippo v. State, 113 Nev. 1239, 1259, 946 P.2d 1017, 1030 (1997). Despite
such failure, this court has the discretion to address the assigned error if it was plain and affected Cordova's
substantial rights. See NRS 178.602 (Plain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.). No such error occurred here. The instruction uses
the language provided in NRS 200.020(2), and this court has upheld use of the instruction where the jury is
properly instructed on the presumption of innocence and the State's burden to prove beyond a reasonable doubt
every element of the crime charged. See Doyle v. State, 112 Nev. 879, 900-02, 921 P.2d 901, 915-16 (1996).
The jury was so instructed here. Therefore, no error occurred at all.
We take this opportunity, however, to clarify that nothing prevents district courts from instructing juries that
malice may be implied when no considerable provocation appears, or when all the circumstances of the killing
show an abandoned and malignant heart.
1
The legislature has not prohibited any definition of malice other
than that set forth in NRS 200.020, as it has done in regard to defining reasonable doubt. See NRS 175.211(2)
(providing that no definition of reasonable doubt other than the one in NRS 175.211(1) may be given to juries).
Moreover, the use of may in the instruction is preferable because it eliminates the issue of a mandatory
presumption, raised by Cordova and many appellants challenging murder convictions,
__________

1
This court has never addressed this matter before. In Witter v. State, 112 Nev. 908, 917 n.3, 921 P.2d 886,
893 n.3 (1996), overruled on other grounds by Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000), we
approved an instruction which stated that malice may be implied. However, we did so apparently assuming
that the instruction used shall, as provided in NRS 200.020(2) and approved in Guy v. State, 108 Nev. 770,
777 & n.2, 839 P.2d 578, 582 & n.2 (1992). See Witter, 112 Nev. at 918, 921 P.2d at 893. In Witter and Guy,
the use of shall in defining implied malice was not at issue; rather, the court considered whether the instruction
adequately distinguished express malice and implied malice. See id.; Guy, 108 Nev. at 777, 839 P.2d at 582.
........................................
appellants challenging murder convictions, and avoids the concerns addressed in Doyle, which prompted this
court to look to other instructions to determine if the State's burden of proof had been properly articulated. See
Byford v. State, 116 Nev. 215, 248 n.11, 994 P.2d 700, 722 n.11 (2000) (Maupin, J., concurring).
Enhanced punishment for use of a deadly weapon
[Headnote 3]
Cordova argues that the sentence enhancement imposed for his use of a deadly weapon was improper
because use of a deadly weapon was a necessary element of the crime he committed. He made this argument at
his sentencing, and the district court rejected it. We conclude that the district court did not err.
NRS 193.165(1) provides for imposition of an additional, consecutive prison term equal to the term
prescribed for a crime when a deadly weapon is used to commit the crime. However, pursuant to NRS
193.165(3), this provision does not apply where the use of a deadly weapon is a necessary element of such
crime.
The jury in this case was instructed that if it found
beyond a reasonable doubt that the Defendant committed the offense of shooting or aiding or abetting
the shooting by another into an occupied dwelling, and that it is a felony dangerous to human life, then
you may return a verdict of guilty on the felony offense of Murder of the Second Degree.
2

The jury returned a special verdict form showing that it found Cordova guilty of second-degree murder in the
commission of a dangerous felony.
Because the jury found that he committed felony murder based on the predicate felony of shooting into an
occupied dwelling, Cordova asserts that use of a deadly weapon was an element of the crime he committed.
Therefore, he concludes, NRS 193.165(3) precludes the deadly weapon enhancement in his case.
The California Supreme Court considered this issue in People v. Hansen, 885 P.2d 1022 (Cal. 1994). In that
case, the appellant was convicted of second-degree murder based on felony murder, the predicate felony
being discharging a firearm at an inhabited dwelling.
__________

2
This instruction was drafted by Cordova's counsel based on Sheriff v. Morris, 99 Nev. 109, 659 P.2d 852
(1983), which discusses the requirements for second-degree felony murder. However, the instruction misstated
Morris, which requires a predicate felony to be inherently dangerous, not simply dangerous, to human life.
See Morris, 99 Nev. at 115-19, 659 P.2d at 857- 59. We conclude that any error was insignificant because the
felony of discharging a firearm into an occupied building is inherently dangerous to human life. Cf. People v.
Hansen, 885 P.2d 1022, 1026-27 (Cal. 1994). Moreover, the error has not been raised on appeal and is
attributable to Cordova in the first place.
........................................
the predicate felony being discharging a firearm at an inhabited dwelling. Hansen, 885 P.2d at 1031. A
California statute provided for an enhancement of a person's sentence for using a firearm in the commission of a
felony unless use of a firearm is an element of the offense of which he or she was convicted.' Id. (quoting
Cal. Penal Code 12022.5(a)). The court held:
The phrase element of the offense signifies an essential component of the legal definition of the crime,
considered in the abstract. In the present case, the crime of which defendant was convicted was second
degree murder. The offense, considered in the abstract, does not include use of a firearm as an element.
Second degree murder may be committed in a myriad of ways, some that involve use of a firearm, and
others, such as stabbing, poisoning, or strangling, that do not involve use of this type of weapon. Under
[the pertinent statute], the enhancement applies unless use of a firearm is an element of the offense and
not merely the means by which the offense was committed or the factual predicate of a theory upon which
the conviction was based.
Id. at 1031-32 (citations omitted); cf. State v. Olsen, 760 P.2d 603, 605 (Ariz. Ct. App. 1988) (Appellant's
suggestion that the mandatory sentencing scheme did not apply because the elements of the crime included the
enhancer' is not persuasive. Appellant confuses the elements of the crime with the mode of its commission.).
We consider the reasoning in Hansen persuasive and applicable to NRS 193.165(3). NRS 193.165(3)
precludes the weapon enhancement only if use of a deadly weapon is a necessary element of the crime
committed. This language refers to, as stated by the California court, an essential component of the legal
definition of the crime, considered in the abstract. In decreeing that a crime committed with the use of a deadly
weapon should be punished more severely than one committed without such use, the Nevada Legislature did not
intend to exclude felony murder whenever an element of the predicate felony was use of a deadly weapon. Cf.
Hansen, 885 P.2d at 1032. On the contrary, we conclude that this is precisely the kind of situation for which
enhanced punishment is intended.
Comments by a witness on the veracity of the appellant
Cordova contends that a witness for the prosecution improperly commented on the truthfulness of Cordova's
pretrial statement to police. Cordova did not object to the testimony in question, so again we review for plain
error affecting Cordova's substantial rights, pursuant to NRS 178.602. We conclude that admission of the
testimony was not plainly erroneous or prejudicial to Cordova.
........................................
[Headnote 4]
Cordova's only defense was to raise the possibility that Hodson, the friend who loaned Cordova the murder
weapon, accompanied Cordova to the victim's apartment and fired the shots and that Cordova falsely accepted
the blame for his friend. Hodson had fled and gone into hiding sometime after the crime. During
cross-examination of the detective who took Cordova's confession, defense counsel asked if the detective had
been involved in investigations where individuals in serious felony cases, even shooting cases, have taken
responsibility for shooting to cover someone else? The detective answered that he had. On redirect
examination, the prosecutor asked the detective, And in all of the murder investigations which you have ever
conducted, have you ever had a person confess to a murder they did not commit? The detective answered that
he never had, other than persons who were mentally disturbed and claimed responsibility for a murder that never
occurred. The prosecutor asked if Cordova had seemed mentally disturbed, and the detective said no. The
detective felt that Cordova was sincere when he said he committed the crime by himself.
3

[Headnote 5]
Cordova contends that the detective improperly testified on Cordova's veracity and guilt under Nevada case
law. An expert may not comment on a witness's veracity or render an opinion on a defendant's guilt or
innocence. See Lickey v. State, 108 Nev. 191, 196, 827 P.2d 824, 827 (1992); Winiarz v. State, 104 Nev. 43,
50-51, 752 P.2d 761, 766 (1988). This case law is not precisely on point here. The detective did not testify as an
expert, nor did he comment on Cordova's veracity as a witness. However, the detective's opinion on the
truthfulness of Cordova's confession did implicate the ultimate question of guilt or innocence, and we recognize
the possibility that jurors may be improperly swayed by the opinion of a witness who is presented as an
experienced criminal investigator. Sakeagak v. State, 952 P.2d 278, 282 (Alaska Ct. App. 1998).
More apposite is Flynn v. State, 847 P.2d 1073 (Alaska Ct. App. 1993), which Cordova cites. In that case the
court concluded that a police sergeant's expert testimony "that he had 'yet to have an
innocent person confess' was tantamount to a statement of his professional opinion that
[the appellant] had confessed truthfully and was therefore guilty as charged."
__________

3
In response to other questions by the prosecutor, the detective opined that Hodson had gone into hiding
because he did not want to testify against his friend, Cordova. Cordova complains that this opinion was
improper, but he failed to object below, and he provides no authority to this court in support of his claim. We
therefore decline to consider it. See Jones v. State, 113 Nev. 454, 468, 937 P.2d 55, 64 (1997) (a contention
unsupported by specific argument or authority should be summarily rejected on appeal). It should be noted that
another possible motive for Hodson's disappearance was that he faced likely felony charges because police had
found more than a pound of marijuana at his apartment when they recovered the murder weapon.
........................................
that a police sergeant's expert testimony that he had yet to have an innocent person confess' was tantamount to
a statement of his professional opinion that [the appellant] had confessed truthfully and was therefore guilty as
charged. Flynn, 847 P.2d at 1075. The appellant had objected unsuccessfully to the testimony. Id. The
appellant's confession was central to the prosecution's case at trial; yet the circumstances surrounding the
confession rendered [the appellant's] claim of coercion at least arguably plausible. Id. at 1076. The appellate
court concluded that the trial court had abused its discretion in admitting the testimony. Id.
This case still differs from Flynn in several ways. First, Cordova's counsel initiated inquiry into the
detective's experience regarding false confessions. Thus, Cordova opened the door to the prosecutor's questions
on the subject. Cf. Colon v. State, 113 Nev. 484, 493, 938 P.2d 714, 720 (1997) (prosecutor's reference to
appellant's refusal to cooperate with police not reversible error where appellant's counsel raised the issue),
limited on other grounds by Salgado v. State, 114 Nev. 1039, 1042, 968 P.2d 324, 326 (1998). Second, although
Cordova implied that he confessed falsely to take the blame for Hodson, the circumstances surrounding the
confession do not render this implication plausible. And third and fourth, Cordova did not object to the
prosecutor's questions, and the detective did not testify as a qualified expert. We conclude that if any error
occurred here, it was not plain error and did not affect Cordova's substantial rights.
CONCLUSION
None of Cordova's assignments of error warrants relief. We affirm his conviction and sentence.
____________
JOHNNY HUGHES WALKER, JR., Appellant, v. THE STATE OF NEVADA, Respondent.
No. 34061
August 21, 2000 6 P.3d 477
Appeal from a judgment of conviction entered pursuant to a jury verdict of one count of battery with the use
of a deadly weapon. Eighth Judicial District Court, Clark County; John S. McGroarty, Judge.
Defendant was convicted in the district court of one count of battery with the use of a deadly weapon, and he
appealed. The supreme court, Becker, J., held that: (1) information was sufficiently detailed to put defendant on
notice that State was pursuing alternate theories of criminal liability;
........................................
ing alternate theories of criminal liability; (2) accomplice's statement to victim during earlier confrontation was
admissible under Hillmon doctrine, Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892); (3) accomplice's
statement to third party that he shot victim because victim had tried to steal accomplice's necklace was
admissible as statement against penal interest; and (4) refusal to admit accomplice's statement to third party was
harmless error.
Affirmed.
Philip J. Kohn, Special Public Defender, and Dayvid J. Figler, Deputy Special Public Defender, Clark
1. Criminal Law.
The State may proceed on alternate theories of liability as long as there is evidence in support of those theories.
2. Conspiracy.
Although the State must allege specific facts concerning its theories of liability so as to afford a criminal defendant adequate
notice to prepare his defense, it is not necessary to plead a conspiracy in the charging document if the evidence actually shows its
existence.
Information was sufficiently detailed to put defendant on notice that State was pursuing alternate theories of criminal liability.
State alleged, that defendant either directly committed offense, aided and abetted in offense by acting in concert in its commission, or
conspired to commit offense and was vicariously liable for acts committed in furtherance of conspiracy.
4. Criminal Law.
Under the Hillmon doctrine, when the performance of a particular act by an individual is an issue in a case, his intention, or state
of mind, to perform that act may be shown, and from that intention, the trier of fact may draw the inference that the person carried out
his intention and performed the act. Within this conceptual framework, hearsay evidence of statements by the person which tend to
show his intention is deemed admissible under the state of mind exception. NRS 51.105(1).
5. Criminal Law.
Accomplice's statement to victim during earlier confrontation that [I] ain't going out like no punk, was admissible in battery
prosecution under Hillmon doctrine to show that victim, whom defendant had accused of stealing accomplice's necklace, believed that
defendant and accomplice intended to retaliate for that theft. Statement was highly relevant to show that defendant and accomplice had
carried out intent to retaliate when they lured victim and victim's friend to schoolyard and then shot victim. NRS 51.105(1).
6. Criminal Law.
Accomplice's statement to third party that he shot victim because victim had tried to steal accomplice's necklace was admissible in
battery prosecution as statement against penal interest. Accomplice was set to be tried separately following defendant's
trial,
........................................
tried separately following defendant's trial, and was thus unavailable to testify, accomplice exposed himself to criminal liability for
battery or attempted murder by bragging that he shot victim, and defendant made statement during private conversation with good
friend at time when he was not implicated in shooting. NRS 51.345.
7. Criminal Law.
The statutory test for determining the admissibility of statements against penal interest is whether the totality of the circumstances
indicates the trustworthiness of the statement or corroborates the notion that the statement was not fabricated to exculpate the
defendant. Corroboration by a particular type of independent evidence is not required to establish the trustworthiness of the statement.
NRS 51.345.
8. Criminal Law.
Hearsay errors are subject to harmless error analysis.
9. Criminal Law.
Error in refusing to admit accomplice's statement to third party that he shot victim because victim had tried to steal accomplice's
necklace as statement against penal interest was harmless in battery prosecution, where evidence was sufficient to convict defendant
under alternate theories as either aider and abettor or co-conspirator. NRS 51.345.
OPINION
Appellant Johnny Hughes Walker, Jr., was sentenced to a minimum term of four years in the Nevada
State Prison after a jury convicted him of one count of battery with the use of a deadly weapon. Walker
alleges numerous errors on appeal, including the failure to admit an out-of-court statement made by his
co-defendant. Having considered Walker's claims of error, we affirm Walker's conviction for battery
with the use of a deadly weapon. However, we take this opportunity to clarify the statutory test for
admission at trial of statements against penal interest.
1

FACTS
In September of 1997, police responded to a 911 call at the residence of seventeen-year-old David Dimas
in Las Vegas. He had been shot in the neck. David recovered from the gunshot wound and eventually gave a
statement to police implicating Walker and his cousin, Christian Walker, in the shooting. Both Walker and
Christian were arrested and charged with attempted murder with the use of a deadly weapon and
battery with the use of a deadly weapon.
__________

1
Walker also alleges prosecutorial misconduct, erroneous admission of photographs at trial, insufficient
evidence to support his conviction, and cumulative error. After carefully reviewing the record on appeal and
the briefs filed herein, we conclude that these remaining contentions are without merit.
........................................
the use of a deadly weapon and battery with the use of a deadly weapon. Their trials were severed, and Walker's
first jury trial ended in a mistrial.
According to the evidence presented by the State at Walker's second trial, a dispute over a missing necklace
belonging to Christian had arisen between Christian and David on the day of the shooting, and Christian had
accused David of stealing the necklace. After confronting David at his house earlier that day, Christian returned
to David's house late that evening, this time with Walker, and the two lured David and his friend, Brandon
Douzat, to a nearby schoolyard. Although the State presented alternate theories of liability against Walker,
including aiding and abetting and conspiracy, David testified that Walker shot him as they shook hands before
leaving the schoolyard.
The jury acquitted Walker of attempted murder with the use of a deadly weapon but found him guilty of
battery with the use of a deadly weapon.
DISCUSSION
I. Jury instructions on conspiracy
Walker contends that the district court erred in allowing the State to proceed on a theory of conspiracy
because conspiracy was not pleaded in the information and there was no evidence of conspiracy presented at
trial. We disagree.
Initially, the record reveals that, although he did move to dismiss the conspiracy counts at trial, Walker did
not object to the jury instructions on the record. Accordingly, we conclude that Walker has waived any right to
assign error to the jury instructions on appeal. See Etcheverry v. State, 107 Nev. 782, 784-85, 821 P.2d 350,
351 (1991) (failure to object to jury instruction at trial bars appellate review).
[Headnotes 1, 2]
Even if Walker had not waived this issue, the result would be the same. The State may proceed on alternate
theories of liability as long as there is evidence in support of those theories. See Holmes v. State, 114 Nev. 1357,
1363, 972 P.2d 337, 341-42 (1998). Although the State must allege specific facts concerning its theories of
liability so as to afford a criminal defendant adequate notice to prepare his defense, it is not necessary to plead a
conspiracy in the charging document if the evidence actually shows its existence. See Goldsmith v. Sheriff, 85
Nev. 295, 304-05, 454 P.2d 86, 92 (1969).
[Headnote 3]
We conclude that the information in this case was sufficiently detailed to put Walker on notice that the State
was pursuing alter nate theories of criminal liability.
........................................
nate theories of criminal liability. In particular, the State alleged three theories of principal liability in Walker's
information: (1) Walker directly committed the offense; (2) Walker aided and abetted in the offense by acting in
concert in its commission; and (3) Walker conspired to commit the offense and is vicariously liable for acts
committed in furtherance of the conspiracy.
II. Admission of hearsay statement of co-defendant
Walker contends that his co-defendant Christian's statement, I ain't going out like no punk, was not
admissible pursuant to the state of mind exception to the hearsay rule because it was too ambiguous to bear on
Walker's state of mind. Christian allegedly made the statement to the victim, David, during an earlier
confrontation between Christian and David over the missing necklace. We disagree.
[Headnote 4]
Pursuant to NRS 51.105, a statement of the declarant's then existing state of mind, emotion, sensation or
physical condition, such as intent, is not inadmissible under the hearsay rule. See NRS 51.105(1). The Hillmon
2
doctrine, a well-settled rule of evidence, provides that:
[W]hen the performance of a particular act by an individual is an issue in a case, his intention (state of
mind) to perform that act may be shown. From that intention, the trier of fact may draw the inference that
the person carried out his intention and performed the act. Within this conceptual framework, hearsay
evidence of statements by the person which tend to show his intention is deemed admissible under the
state of mind exception.
Lisle v. State, 113 Nev. 679, 691, 941 P.2d 459, 467 (1997) (citations omitted).
[Headnote 5]
We conclude that Christian's statement was properly admitted to show Christian's, not Walker's, state of
mind. The record reveals that on the day of the shooting, Christian told David that he ain't going out like no
punk. David understood this statement to mean that Christian was going to retaliate because his necklace was
missing. In light of the State's theories of conspiracy and/or aiding and abetting, Christian's statement of intent
was highly relevant to show that he and Walker carried out his intent to retaliate by luring David and Brandon to
the schoolyard and then shooting David. Accordingly, we conclude that the district court did not abuse its
discretion by admitting Christian's statement at trial.
__________

2
Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892).
........................................
court did not abuse its discretion by admitting Christian's statement at trial. See Petrocelli v. State, 101 Nev. 46,
52, 692 P.2d 503, 508 (1985) (decision to admit evidence is within the sound discretion of the district court, and
this court will not disturb that decision unless it is manifestly wrong).
III. Exclusion of hearsay statement of co-defendant
[Headnote 6]
Walker contends that the district court erred by refusing to admit at trial another statement allegedly made
by Christian after the shooting as a statement against penal interest. We agree.
Pursuant to NRS 51.345, a statement against penal interest is admissible if: (1) at the time of its making, the
statement tends to subject the declarant to civil or criminal liability; (2) a reasonable person in that position
would not have made the statement unless he believed it to be true; and (3) the declarant is unavailable as a
witness at the time of trial. See NRS 51.345(1). If the statement is offered to exculpate an accused, however, an
additional requirement exists: corroborating circumstances must clearly indicate the trustworthiness of the
statement. Id.
At trial, Walker proffered the testimony of Josh Martinez who, if allowed to testify, would have stated that
Christian told him, I shot a guy over my necklace. He tried to jack me. The State objected to the admission of
the testimony, arguing that there were no corroborating circumstances indicating the trustworthiness of the
statement. The district court found the statement unreliable and refused to admit the testimony.
During the defense offer of proof, Martinez stated that he and Christian were good friends and that Christian
told him that he shot someone over his necklace. Martinez further stated that sometime later, while the two were
driving to pick up a friend, Christian recanted the statement, saying I was just messing [with you]. Martinez
indicated that the two were smoking marijuana and drinking alcohol when Christian made the statement and that
he understood from his conversation with Christian that the shooting occurred during the course of a robbery.
Martinez also indicated that Christian gave him a gun for safekeeping on the evening that he made the statement
and that Christian and Walker retrieved the gun from him several days later.
The record reveals that Martinez's proffered testimony clearly complied with the first three requirements of
NRS 51.345. Christian, the declarant, was a co-defendant set to be tried separately after Walker's trial and thus
was unavailable within the meaning of the statute. By bragging that he shot David for stealing his necklace,
Christian exposed himself to criminal liability for attempted murder or battery.
........................................
It was the fourth requirement of trustworthiness that concerned the district court and upon which it based the
decision to exclude Christian's statement. During the defense offer of proof below, the State urged the district
court to exclude the statement because there was no independent corroborating evidence demonstrating the
trustworthiness of the statement. In refusing to admit the statement, the district court indicated that it found the
statement unreliable.
[Headnote 7]
The fact that much of the State's argument focused on a lack of independent corroborating evidence indicates
to us that the use in the statute of the language corroborating circumstances gives the erroneous impression
that some sort of specific independent evidence is necessary to establish trustworthiness. Accordingly, we take
this opportunity to clarify our decisions in Sparks v. State, 104 Nev. 316, 759 P.2d 180 (1988) and Woods v.
State, 101 Nev. 128, 696 P.2d 464 (1985) by reiterating that the statutory test for determining the admissibility
of statements against penal interest under NRS 51.345 is whether the totality of the circumstances indicates the
trustworthiness of the statement or corroborates the notion that the statement was not fabricated to exculpate the
defendant. Corroboration by a particular type of independent evidence is not required to establish the
trustworthiness of the statement.
We conclude that the district court erred by refusing to admit Martinez's proffered statement. The record
reveals that Christian made the statement to Martinez during a private conversation at home and that Christian
was not implicated in the shooting at that time. The record further reveals that the two were good friends, and it
is well-settled that a statement against interest made to a close friend or relative is considered to be more reliable
than a statement made to a stranger. See Woods, 101 Nev. at 134-35, 696 P.2d at 469 (1985). Christian's
recantation a short time later could indicate that he realized the grave consequences of making such a statement
and wanted to protect himself from criminal liability. There is no indication that Martinez was in any way
involved in the shooting and no advantage accrued to him for proffering the testimony. These corroborating
circumstances support a finding of trustworthiness under NRS 51.345 for purposes of admissibility of evidence.
The fact that Christian was drinking and smoking marijuana when he uttered the confession should be
considered by the jury in determining what weight and credence to give Martinez's testimony. See Hutchins v.
State, 110 Nev. 103, 107, 867 P.2d 1136, 1139 (1994) (weight and credibility issues are solely for the jury).
........................................
[Headnotes 8, 9]
However, hearsay errors are subject to harmless error analysis. See Franco v. State, 109 Nev. 1229, 1237,
866 P.2d 247, 252 (1993). The State was proceeding on alternate theories of liability. Thus, even if the jury
rejected the notion that Walker was the shooter in this case, the jury could still find him guilty as an aider and
abettor or a co-conspirator. The record reveals sufficient evidence to support Walker's conviction based upon
these alternate theories of liability. Accordingly, we conclude that the failure to admit Christian's out-of-court
statement was harmless error.
CONCLUSION
We affirm Walker's judgment of conviction of battery with the use of a deadly weapon.
____________
116 Nev. 677, 677 (2000) Speer v. State
MICHAEL RICHARD SPEER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 35587
August 21, 2000 5 P.3d 1063
Appeal from a district court order denying appellant's post-conviction petition for a writ of habeas corpus.
Second Judicial District Court, Washoe County; Steven R. Kosach, Judge.
Petitioner, who had been convicted pursuant to guilty plea of felony driving under the influence (DUI), filed
petition for writ of habeas corpus. The district court denied petition. Petitioner appealed. The supreme court held
that petitioner's prior felony DUI conviction was properly used to enhance his subsequent DUI conviction to a
felony.
Affirmed.
Richard F. Cornell, Reno, for Appellant.
1. Statutes.
The construction of a statute is a question of law.
2. Statutes.
Generally, when the words in a statute are clear on their face, they should be given their plain meaning unless such a
reading violates the spirit of the act.
........................................
116 Nev. 677, 678 (2000) Speer v. State
3. Statutes.
Statutory language should be construed to avoid absurd or unreasonable results.
4. Statutes.
In construing statute, no part of a statute should be rendered nugatory, nor any language turned to mere surplusage, if such
consequences can properly be avoided.
5. Automobiles.
Prior felony driving under the influence (DUI) conviction may be used to enhance a subsequent DUI conviction to a felony so long
as the prior offense occurred within 7 years immediately preceding the date of the principal offense or after the principal offense. NRS
484.379, 484.3792.
6. Automobiles.
Trial court properly used defendant's prior felony driving under the influence (DUI) conviction to enhance a subsequent DUI
conviction to a felony, where prior felony DUI conviction occurred within 7 years immediately preceding the date of the principal
offense. NRS 484.379, 484.3792.
OPINION
Per Curiam:
The issue before this court is whether a felony DUI conviction may be used as a prior offense to enhance
a subsequent DUI conviction to a felony. We conclude that it may.
FACTS
Appellant Michael Richard Speer pleaded guilty to driving under the influence in violation of NRS
484.379. At sentencing, the State offered evidence of two prior convictions for the same or similar conduct
within the preceding 7 years. One of the prior convictions was entered in connection with a misdemeanor
offense that occurred in 1996; the other involved a felony offense that occurred in 1991. The 1991 offense
was enhanced to a felony because Speer had two or more DUI convictions prior to the 1991 offense. The
1996 offense was treated as an unenhanced first offense pursuant to a plea agreement; however, the
parties agreed that the conviction would not be treated as a first offense for all purposes and that Speer's
next offense could be treated as a felony.
Speer did not challenge the use of the prior convictions for enhancement purposes. The district court
found that the State had proved that Speer had sustained two valid prior convictions and enhanced the
offense to a felony. The court sentenced appellant to 28 to 72 months.
........................................
116 Nev. 677, 679 (2000) Speer v. State
Speer subsequently filed a post-conviction petition for a writ of habeas corpus. Among other things, Speer
claimed that the district court erred in using a prior felony conviction for enhancement purposes. Speer argued
that only offenses denominated as a first offense or second offense may be used for enhancement. The
district court denied the petition. This timely appeal followed.
DISCUSSION
Speer contends that the district court erred in rejecting his claim that the 1991 DUI conviction could not be
used for enhancement purposes because it was a felony conviction. Speer essentially argues that under NRS
484.3792 only misdemeanor convictions may be used to enhance a subsequent offense to a felony. We disagree.
[Headnotes 1-4]
The issue raised in this appeal requires this court to interpret the sentencing scheme set forth in NRS
484.3792. The construction of a statute is a question of law. Anthony Lee R., A Minor v. State, 113 Nev.
1406, 1414, 952 P.2d 1, 6 (1997). Generally, when the words in a statute are clear on their face, they should
be given their plain meaning unless such a reading violates the spirit of the act. Id. However, statutory
language should be construed to avoid absurd or unreasonable results, id., and no part of a statute should be
rendered nugatory, nor any language turned to mere surplusage, if such consequences can properly be avoided.'
Paramount Ins. v. Rayson & Smitley, 86 Nev. 644, 649, 472 P.2d 530, 533 (1970) (citation omitted).
Nevada law provides for a graduated scheme of sentence enhancements for DUI convictions which is based
on the number of prior offenses within a given period of time. See NRS 484.3792. A person who violates NRS
484.379: (1) [f]or the first offense within 7 years, is guilty of a misdemeanor; (2) [f]or a second offense
within 7 years, is guilty of a misdemeanor; and (3) [f]or a third or subsequent offense within 7 years, is guilty
of a category B felony. NRS 484.3792(1). The statute further provides: An offense that occurred within 7
years immediately preceding the date of the principal offense or after the principal offense constitutes a prior
offense for the purposes of this section when evidenced by a conviction, without regard to the sequence of the
offenses and convictions. NRS 484.3792(2).
[Headnote 5]
We conclude that NRS 484.3792 is clear and unambiguous: any two prior offenses may be used to enhance a
subsequent DUI so long as they occurred within 7 years of the principal offense and are evidenced by a
conviction.
........................................
116 Nev. 677, 680 (2000) Speer v. State
are evidenced by a conviction. The statute does not limit offenses that may be used for enhancement to those
designated as a first offense or a second offense. In other words, the statute does not limit the use of prior
offenses for enhancement purposes to misdemeanors. Rather, the statute provides that an offense, as defined by
NRS 484.3792(8), that occurred within 7 years immediately preceding or after the date of the principal offense
constitutes a prior offense for enhancement purposes. See NRS 484.3792(2). Thus, the key requirements for
enhancement are whether the offense meets the requirements of NRS 484.3792(8) and whether it occurred
within 7 years of the principal offense. Whether the prior offense was a misdemeanor or a felony is not otherwise
relevant under the statute. We therefore conclude that the statute clearly allows the use of a felony conviction for
enhancement purposes so long as the felony conviction was for an offense occurring within the requisite 7-year
period.
1

Speer contends that this interpretation of the statute has been considered and rejected by this court in a series
of prior decisions. We disagree.
In several prior cases, this court has held that a second DUI conviction may not be used to enhance a
conviction for a third DUI arrest to a felony where the second conviction was obtained pursuant to a guilty plea
agreement specifically permitting the defendant to enter a plea of guilty to first offense DUI and limiting the use
of the conviction for enhancement purposes. See, e.g., State v. Crist, 108 Nev. 1058, 843 P.2d 368 (1992); Perry
v. State, 106 Nev. 436, 794 P.2d 723 (1990); State v. Smith, 105 Nev. 293, 774 P.2d 1037 (1989). Our decisions
in Crist, Perry and Smith were based solely on the necessity of upholding the integrity of plea bargains and the
reasonable expectations of the parties relating thereto. See Grover v. State, 109 Nev. 1019, 862 P.2d 421 (1993).
The rule recognized in these cases is not applicable where, as here, there is no plea agreement limiting the use of
the prior conviction for enhancement purposes. See id. Because our prior decisions in Crist, Perry and Smith
depend on the existence of a plea agreement limiting the use of the prior conviction for enhancement purposes,
they do not stand for the general proposition that only offenses designated as a first or second offense may
be used for enhancement purposes. We therefore conclude that Speer's reliance on those cases is misplaced.
Speer also argues that the interpretation adopted in this opinion is contrary to legislative intent because the
legislature has rejected attempts to amend NRS 484.3792 to provide that once a defendant suffers an
enhanced felony DUI conviction any subsequent DUI is a felony.
__________

1
We note that the interpretation urged by Speer would lead to absurd results and would render the phrase or
subsequent offense in NRS 484.3792(1)(c) superfluous. For these reasons, we also reject Speer's interpretation.
........................................
116 Nev. 677, 681 (2000) Speer v. State
dant suffers an enhanced felony DUI conviction any subsequent DUI is a felony. However, we conclude that our
interpretation of the statute does not necessarily lead to the same result as the amendments that the legislature
has rejected. The amendments addressed by Speer essentially sought to eliminate the 7-year requirement once a
person has sustained a felony conviction. By giving effect to the language in NRS 484.3792(1)(c), we have not
eliminated the 7-year requirement. A defendant still must have at least two prior offenses within 7 years of the
charged offense for the charged offense to be enhanced to a felony. See NRS 484.3792(2). The interpretation we
endorse today comports with the plain language of the statute and gives meaning to all of the language in the
statute.
2

CONCLUSION
[Headnote 6]
We conclude that a prior felony DUI conviction may be used to enhance a subsequent DUI conviction so
long as the prior offense occurred within 7 years immediately preceding the date of the principal offense or
after the principal offense. We therefore conclude that the district court did not err in rejecting Speer's claim
that the 1991 felony conviction could not be used for enhancement purposes.
3

__________

2
Speer also argues that the 1991 felony conviction was impermissibly double counted. The legal
underpinnings of this contention are not entirely clear. Most of the cases cited by Speer involved the use of a
single prior conviction to enhance the primary offense to a felony and then also to sentence the defendant for
the primary offense under a general habitual felon statute. Even assuming these cases correctly state the law,
Speer's 1991 felony conviction was not used both to enhance the instant offense to a felony and to adjudicate
Speer as a habitual felon with respect to the instant offense. We therefore conclude that this contention lacks
merit.

3
We acknowledge that the issue addressed in this opinion appears to be a direct appeal issue that cannot be
raised in a post-conviction petition for a writ of habeas corpus challenging a conviction based on a guilty plea.
See NRS 34.810(1)(a); Franklin v. State, 110 Nev. 750, 877 P.2d 1058 (1994) (issues that could have been
raised on direct appeal from a judgment of conviction based on a guilty plea are waived), overruled in part on
other grounds by Thomas v. State, 115 Nev. 148, 979 P.2d 222 (1999). Speer raised this issue in his amended
supplemental petition as a claim of ineffective assistance of counsel. However, the district court's order appears
to resolve the issue on its merits, not in the context of an ineffective assistance claim. The appellate briefs
address the issue in a similar fashion. We conclude that the merits of the underlying issue would be relevant to
an examination of whether counsel provided ineffective assistance by failing to raise the issue at or before
sentencing and, therefore, we have addressed the merits of the issue raised on appeal. Because we conclude that
the issue raised lacks merit, we further conclude that trial counsel was not deficient for failing to raise the issue.
See Strickland v. Washington, 466 U.S. 668 (1984).
____________
116 Nev. 682, 682 (2000) Matter of Estate of Friedman
In the Matter of the ESTATE OF MARGARET M. FRIEDMAN.
No. 33956
August 21, 2000 6 P.3d 473
Appeal from an order of the district court denying admission of a will to probate. Eighth Judicial District
Court, Clark County; Lee A. Gates, Judge.
Executor of estate filed petition for probate of will. The district court denied probate, on ground that will had
not been signed by two attesting witnesses, and executor appealed. The supreme court held, on issue of first
impression, that notary's signature on single witness's self-proving affidavit was sufficient to constitute signature
of an attesting witness to will if notary signed in presence of testator.
Theodore J. Manos & Associates, Las Vegas, for the Estate of Margaret M. Friedman.
The interpretation of a statute is a legal question subject to de novo review.
2. Statutes.
3. Statutes.
When the language of a statute is plain and unambiguous, there is no room for construction, and the courts are not permitted to
search for meaning beyond the statute itself.
4. Wills.
Notary's signature on single witness's self-proving affidavit was sufficient to constitute signature of an attesting witness to will, in
satisfaction of statutory requirement that will be attested by at least two witnesses, if notary signed in presence of testator. NRS
133.040.
5. Wills.
Notary's signature may be sufficient to constitute signature of an attesting witness to will if notary signed in presence of testator.
NRS 133.040.
OPINION
Per Curiam:
This is an appeal from a district court order denying admission of a will to probate on the basis that the
will was not attested by at least two competent witnesses as required by NRS 133.040.
........................................
The issue in this appeal is whether the signature of a notary public may constitute the signature of an attesting
witness to a will. We conclude that the signature of the notary in this case may constitute the signature of a
witness under NRS 133.040, if the notary signed the self-proving affidavit in the presence of the testator. We
therefore reverse the order of the district court. Because it is not clear from the record whether the notary signed
in the presence of the testator, we remand this matter to the district court for a factual determination on this
issue, and for further proceedings.
FACTS
This case involves the last will and testament of Margaret M. Friedman, who died on May 9, 1998.
Friedman executed the will on October 18, 1995, in the presence of Bobbie Mickens, Sr., a witness, and
Claudette J. Moore, a notary public. Friedman's signature is contained on page four of the will. Beneath
Friedman's signature is the signature of Mickens. By his signature, Mickens attested that he witnessed
Friedman sign the will and declare it to be her last will and testament, and that he signed the will in the
presence of Friedman. Moore did not sign this page of the will.
Attached to the will as page five is a self-proving affidavit executed by Mickens on the same day, which
states:
Then and there personally appeared the within-named Bobbie Mickens Sr. who, being duly sworn,
depose[s] and say[s]: That he witnessed the execution of the within Will of the within named Testator,
Margaret M. Friedman; that the Testator subscribed the Will and declared the same to be her last Will
and testament in his presence; that he thereafter subscribed the same as witness in the presence of the
Testator and at the request of the Testator; that the Testator at the time of execution of the Will appeared
to him to be of full age and of sound mind and memory, and that he make[s] this affidavit at the request
of the Testator.
Mickens signed this affidavit in his capacity as a witness, and Moore notarized Mickens' signature. Thus, Moore
signed her name on the self-proving affidavit in her capacity as a notary.
Frank Silver, who was named as the executor of Friedman's estate, filed a petition for probate of the will,
appointment of an executor, and for letters testamentary in the district court. Silver submitted to the district
court a sworn affidavit from Moore prepared during the probate proceedings, averring that she was personally
present when Friedman signed the will, and that she notarized Mickens' signature on the self-proving affidavit.
Moore further averred:
........................................
I witnessed the execution of the Will of the within-named Testatrix, Margaret M. Friedman, that the
Testatrix subscribed the Will and declared the same to be her last Will and testament in my presence and
in the presence of the witness Bobbie Mickens, Sr. who thereafter subscribed the same as witness in the
presence of the Testatrix and at the request of the Testatrix. I further affirm that at the time of execution
of the Will Margaret M. Friedman appeared to me to be of full age and of sound mind and memory.
The district court entered a written order denying admission of the will to probate on the basis that the will
did not conform to the requirements of NRS 133.040. Silver appeals from the district court's order.
1

DISCUSSION
The district court may admit a will to probate if it conforms to the requirements of law. Specifically, NRS
136.150(1) provides that if no person contests the probate of a will, the court may admit the will to probate on
the testimony of one of the subscribing witnesses, if such testimony shows that the will was executed in all
particulars as required by law, and if the testator was of sound mind at the time of execution.
The district court concluded that the signature of Moore, as a notary and not as a witness, was not sufficient
to satisfy the requirements of NRS 133.040. NRS 133.040 requires that a will must be attested by at least two
competent witnesses who subscribe their names to the will in the testator's presence:
No will executed in this state, except such nuncupative wills and such holographic wills as are
mentioned in this chapter, shall be valid unless it be in writing and signed by the testator, or by some
other person in his presence, and by his express direction, and attested by at least two competent
witnesses, subscribing their names to the will in the presence of the testator.
2

[Headnotes 1-3]
The interpretation of a statute is a legal question subject to de novo review. See Madera v. SIIS, 114 Nev.
253, 257, 956 P.2d 117, 120 (1998). It is well established that words in a statute should be given their
plain meaning unless this violates the spirit of the act.
__________

1
The district court found that none of the parties formally objected to admission of the will to probate, or
requested that the estate be administered as an intestate estate. Consequently, there is no respondent on appeal,
and this appeal was submitted for decision on the opening brief, appendix, and record before this court.

2
This is the version of NRS 133.040 in effect at the time relevant to this matter. NRS 133.040 was
subsequently amended in 1999 to provide, in rele-
........................................
should be given their plain meaning unless this violates the spirit of the act. See County of Clark v. Doumani,
114 Nev. 46, 52, 952 P.2d 13, 16 (1998). When the language of a statute is plain and unambiguous, there is no
room for construction, and the courts are not permitted to search for meaning beyond the statute itself. See id.
It must be determined whether Moore's signature on the self-proving affidavit in her capacity as a notary
can constitute the signature of a witness attesting the will under NRS 133.040. This is an issue of first
impression in Nevada.
A review of other court decisions addressing this issue is instructive. Some courts have held that a notary
who signs a will in his or her capacity as a notary could be considered a valid witness to the will, even if the
intent was to sign only as a notary. See Matter of Estate of Zelikovitz, 923 P.2d 740 (Wyo. 1996); Matter of
Estate of Martinez, 664 P.2d 1007 (N.M. Ct. App. 1983). In both Zelikovitz and Martinez, the notary observed
the testator sign the will (or codicil in the case of Zelikovitz), the notary signed the will by notarizing the
testator's signature, and the notary was identified in the will as a notary.
Other courts hold that a notary's signature on a will may be deemed the signature of an attesting witness if the
legal requirements of a valid attestation were satisfied by the notary's signature. See In re Estate of Price, 871
P.2d 1079, 1083 (Wash. Ct. App. 1994). In the case of In re Estate of Alfaro, 703 N.E.2d 620, 627 (Ill. App. Ct.
1998), the court held that a notary's signature may be deemed the signature of an attesting witness so long as all
of the legal requirements of a valid attestation were nonetheless complied with when the notary affixed his
signature. The court explained:
[T]he question to be determined is whether the notary was attesting merely to the genuineness of a
signature or signatures and was therefore acting only in the capacity of a notary or whether the notary was
attesting to all of the acts required by the statute that comprise the proper execution of the will and he was
therefore acting as an attesting witness.
Id. Only in the latter situation will the notary's signature be held to be the signature of a valid attesting witness.
See id.; see also Simpson v. Williamson, 611 So. 2d 544, 546 (Fla. Dist. Ct. App. 1992) (noting that a notary
has been held to be a valid witness to the execution of a will where the notary could have served as a witness,
under the circumstances, had he signed in that capacity).
As set forth above, NRS 133.040 requires that a will (1) must be attested by at least two
competent witnesses
__________
vant part, that the will be attested by at least two competent witnesses who subscribe their names to the will in
the presence of the testator.1999 Nev. Stat. ch. 467, 73, at 2254. The amendment does not change our
analysis.
........................................
be attested by at least two competent witnesses (2) subscribing their names to the will in the presence of the
testator. In the case at bar, we recognize that Moore apparently intended to sign only in the capacity of a notary,
and not in the capacity of a witness. Further, unlike the facts in Zelikovitz and Martinez, Moore notarized the
witness's signature rather than the testator's signature. Nevertheless, we conclude that under the unique facts and
circumstances of this case, Moore's signature is sufficient to constitute the signature of an attesting witness under
NRS 133.040, provided that Moore signed in the presence of Friedman.
First, Moore's actions constituted those of a witness attesting the will within the meaning of NRS 133.040.
Moore had personal knowledge that Friedman signed the will, as Moore was present when Friedman signed the
will and declared it to be her last will and testament. See Matter of Estate of Lindsay, 957 P.2d 818, 820 (Wash.
Ct. App. 1998) (stating that a witness to a will is one who has personal knowledge that the testator signed the
will); Price, 871 P.2d at 1083 (providing that the witness's attestation certifies that the testator's signature was
valid). Moore also signed a sworn affidavit during the probate proceedings averring that Friedman appeared to
be of full age and sound mind at the time she executed the will. See generally NRS 133.050(2) (providing the
form for a self-proving affidavit in which the attesting witness avers that the testator appeared to be of full age
and of sound mind and memory at the time of execution of the will); see also In re Weber's Estate, 387 P.2d 165,
169 (Kan. 1963) (recognizing that attesting witnesses to a will must be satisfied that the testator is of sound mind
and capable of executing a will).
[Headnotes 4, 5]
Second, it appears that Moore may have subscribed her name to the will in Friedman's presence within the
meaning of NRS 133.040. It is not clear from the record that Moore signed her name in the presence of
Friedman. Moore's affidavit, prepared during the probate proceedings, does not expressly state that she signed
while Friedman was present. In addition, the district court's findings of fact do not explain the precise
circumstances of Moore's notarization. Provided, however, that Moore did sign in the presence of Friedman,
Moore's signature complies with the statutory requirement that a witness must subscribe his or her name in the
presence of the testator.
3
Additionally, even though Moore's signature is not contained on the fourth page of the
will where Friedman signed, but rather on Mickens' self-proving affidavit attached to the will on page five, we
conclude that under the circumstances of this case,
__________

3
If Moore did not sign in the presence of Friedman, however, then this statutory requirement was not met, and
Moore's signature may not constitute the signature of an attesting witness under NRS 133.040.
........................................
circumstances of this case, Moore's signature on the affidavit may be considered a signature on the will itself.
See NRS 133.050(1) (providing that attesting witnesses may sign self-proving affidavits to attach to the will);
NRS 133.055 (stating that a signature on a self-proving affidavit attached to a will is considered a signature
affixed to the will if necessary to prove the execution of the will).
4

We conclude that Moore's signature was sufficient to meet the requirements of an attesting witness under
NRS 133.040, provided that Moore signed the self-proving affidavit in Friedman's presence.
CONCLUSION
For the reasons set forth above, we reverse the order of the district court, and we remand this matter to the
district court for a factual determination on whether Moore signed the self-proving affidavit in the presence of
Friedman, and for further proceedings consistent with this opinion.
5

____________
116 Nev. 687, 687 (2000) Collman v. State
THOMAS COLLMAN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 31085
August 23, 2000 7 P.3d 426
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of first-degree murder and a
sentence of death. Seventh Judicial District Court, White Pine County; Dan L. Papez, Judge.
Defendant was convicted following jury trial in the district court of first-degree murder in connection with
death of live-in girlfriend's three-year-old son and was sentenced to death. Defendant appealed. The supreme
court, Agosti, J., held that: (1) evidence that defendant's girlfriend allegedly had interest in vampirism, biting,
and devil worship was properly excluded at guilt phase; (2) evidence of girlfriend's lack of remorse was relevant
to defense theory that girlfriend was real killer,
__________

4
We recognize that the likely purpose of NRS 133.055 is to consider an attesting witness's signature, as
opposed to any signature, on a self-proving affidavit attached to the will to be a signature affixed to the will
itself. In this case, however, if Moore's signature constituted that of an attesting witness, then her signature on
the self-proving affidavit may be considered a signature on the will itself.
We note that NRS 133.055 was amended in 1999 to require also that the self-proving affidavit be executed at
the same time as the will. See 1999 Nev. Stat. ch. 467, 76, at 2255.

5
The Honorable Myron E. Leavitt, Justice, voluntarily recused himself from participation in the decision of
this appeal.
........................................
defense theory that girlfriend was real killer, but evidence of girlfriend's alleged sexual conduct immediately
following victim's death was not adequately proven for purposes of admissibility; (3) evidence supported
conviction; (4) child abuse is not conclusive evidence of malice in first-degree murder prosecution; (5) improper
instruction to that effect was harmless; (6) supreme court will review for harmless error instructions omitting,
misdescribing, or presuming an element of an offense if error is not structural in form and effect, overruling
Thompson v. State, 108 Nev. 749, 838 P.2d 452 (1992); and (7) death sentence was not excessive or imposed
under influence of prejudice or passion.
Affirmed.
Rose, C. J., dissented.
Frankie Sue Del Papa, Attorney General, Carson City; Sudabeh Fahami, District Attorney, and
Theodore J. Beutel and Rusty D. Jardine, Chief Deputy District Attorneys, White Pine County, for
Respondent.
Franny A. Forsman, Federal Public Defender, and Michael L. Pescetta, Assistant Federal Public
Defender, Las Vegas, for Amicus Curiae Federal Public Defender.
Stewart L. Bell, District Attorney, and Brian S. Rutledge, Chief Deputy District Attorney, Clark
County, for Amicus Curiae Clark County District Attorney's Office.
1. Jury.
Refusal in capital murder prosecution to excuse for cause two potential jurors who had read about case in newspaper and
had heard others talk about it was not error, where district court questioned both potential jurors closely, both consistently
stated that they could be fair and impartial, and court determined that neither had formed any opinion or had any bias against
defendant. NRS 16.050(1), 175.036(1).
2. Criminal Law.
In order to determine admissibility of evidence of prior bad acts, the district court must determine that (1) the incident is
relevant to the crime charged, (2) the act is proven by clear and convincing evidence, and (3) the probative value of the
evidence is not substantially outweighed by the danger of unfair prejudice. NRS 48.045(2).
3. Criminal Law.
Decision to admit or exclude evidence rests within the trial court's discretion, and supreme court will not overturn that
decision absent manifest error.
........................................
4. Criminal Law.
Evidence that defendant's live-in girlfriend allegedly had interest in vampirism, biting, and devil worship, as proffered to prove
that girlfriend, and not defendant, had committed abuse resulting in death of girlfriend's three-year-old son, was properly excluded at
guilt phase of capital murder prosecution based on determination that probative value of evidence was substantially outweighed by the
danger of confusing the issues and misleading the jury. NRS 48.035(1), 48.045(2), 200.030(1)(a).
5. Criminal Law; Witnesses.
Defendant who advanced theory in capital murder prosecution that his live-in girlfriend, rather than he, had caused death of
girlfriend's infant son by child abuse could not impeach girlfriend's testimony that she loved being pregnant with evidence that she had
once undergone an abortion. Evidence of alleged abortion was collateral to issue of who killed child, and any probative value was
substantially outweighed by danger of unfair prejudice, confusing the issues, and misleading jury. NRS 48.035(1), 48.045(2),
50.085(3), 200.030(1)(a).
6. Witnesses.
Impeachment of a witness on a collateral matter is not allowed. NRS 50.085(3).
7. Homicide.
Evidence that defendant's girlfriend displayed lack of remorse in period immediately following death of her three-year-old son was
relevant in capital murder prosecution to defense theory that girlfriend was the real killer, especially since the court admitted
prosecution's evidence of defendant's lack of remorse over the child's death through testimony that defendant propositioned girlfriend
for sex around the time of child's funeral.
8. Homicide.
Alleged sexual conduct by defendant's girlfriend with two other women in period immediately following death of her
three-year-old son, though relevant to show girlfriend's lack of remorse and to support defense theory that girlfriend was real killer, was
properly excluded in murder prosecution on basis that defendant failed to prove allegations by even a preponderance of evidence. NRS
48.045(2).
9. Homicide.
Evidence that defendant, in month prior to death of his girlfriend's three-year-old son, had received temporary, nondisciplinary
transfer from lockdown unit of prison where he worked as guard to a less stressful unit was not improper character evidence in murder
prosecution arising from death of girlfriend's son, but was admissible to show that defendant was under stress shortly before child's
death. NRS 48.045(2).
10. Criminal Law.
Reference to a defendant's prior criminal history may be reversible error.
11. Criminal Law.
Test for determining whether there has been improper reference to prior criminal history is whether the jury could reasonably infer
from the evidence presented that defendant had engaged in prior criminal activity.
12. Criminal Law.
Testimony of two State witnesses in murder prosecution, alluding to fact that defendant had been in jail, were improper references
to defendant's prior criminal history.
........................................
13. Criminal Law.
Improper references to prior criminal history by two State witnesses, in testimony referring to fact that defendant had been in jail,
were harmless in capital murder prosecution. Statements were not made or elicited by prosecutor but were brief, inadvertent comments
by inexperienced witnesses in a long and complicated trial, and jury found in penalty phase that defendant's lack of criminal history
was mitigating factor.
14. Criminal Law.
Videotape depicting victim as a happy baby was admissible, in capital murder prosecution arising from victim's death at age three
at a time when his mother was defendant's live-in girlfriend, to show victim's demeanor prior to defendant's involvement in his life.
15. Criminal Law.
Trial court has the discretion to admit or exclude photographs of a victim, and supreme court will not overturn such a ruling absent
an abuse of that discretion.
16. Criminal Law.
Trial court must determine in murder prosecution whether the probative value of photographs of victim is substantially outweighed
by the danger of unfair prejudice.
17. Criminal Law.
Entire report prepared by State's forensic expert, in which expert concluded that three-year-old victim had suffered nine different
bite marks and found with high degree of confidence that defendant, who lived with victim's mother, was the biter, was admissible in
capital murder prosecution after defense utilized report to cross-examine expert and showed a photograph of report to jury. Entire
report was relevant because evidence of bite marks tended to prove victim was abused child. NRS 47.120(1), 200.030(1)(a).
18. Criminal Law.
Proposed hearsay testimony by defense expert in forensic dentistry, that colleagues at professional conference had opined after
seeing photograph of three-year-old victim's body that victim possessed only one bite mark, was not admissible in murder prosecution
against boyfriend of victim's mother in which State attempted to establish pattern of child abuse. Colleagues' opinions did not possess
requisite assurances of accuracy. NRS 51.075(1).
19. Criminal Law.
Defense expert in forensic dentistry, in opining in murder prosecution arising from alleged child abuse that three-year-old victim's
body displayed only one bite mark, could not properly testify, as basis for that opinion, to comments made by colleagues at
professional conference after viewing one photograph of victim's body. Such comments would not be reasonably relied upon by an
expert in forming an opinion. NRS 50.285(2).
20. Witnesses.
Witness who testified that defendant's girlfriend proudly displayed bruises she allegedly inflicted on three-year-old son could
properly be impeached, in capital murder prosecution arising from alleged child abuse, by evidence that witness had not called
authorities to report defendant's girlfriend as child abuser. That evidence impeached sincerity of witness's alleged concern for victim,
and witness's testimony suggested a bias in favor of defendant. NRS 200.030(1)(a).
21. Witnesses.
Impeachment consists of attacking a witness's credibility, which depends on that witness's willingness and ability to tell the
truth.
........................................
22. Witnesses.
One may be impeached with respect to such matters as perception, memory, communication, sincerity, or bias.
23. Criminal Law.
Proposed instruction on child abuse causing substantial bodily harm, as lesser related offense of first-degree murder, was
inconsistent with defendant's theory of defense and was thus properly refused in prosecution arising from death of three-year-old son of
defendant's live-in girlfriend, where defendant asserted that victim had either fallen down stairs, choked on bubble gum, or died from
abuse by his mother. NRS 200.030(1)(a).
24. Criminal Law.
Requirement that a defendant seeking instruction on lesser related offense demonstrate that his theory of defense is consistent with
proposed instruction does not violate Fifth Amendment right against self-incrimination. U.S. Const. amend. 5.
25. Homicide.
First-degree murder conviction arising from death of three-year-old son of defendant's girlfriend was supported by evidence
including defendant's abuse of child in months leading up to his death, overlapping bruises of various ages on child's body, and
defendant's failure to call 911 when child died while in his care. NRS 200.030(1)(a).
26. Criminal Law.
In reviewing the evidence supporting a jury's verdict, supreme court must determine whether the jury, acting reasonably, could
have been convinced of the defendant's guilt beyond a reasonable doubt by the competent evidence.
27. Criminal Law.
Supreme court will not disturb a jury's verdict on appeal where there is substantial evidence to support it.
28. Criminal Law.
Jury determines what weight and credibility to give conflicting testimony.
29. Criminal Law.
Circumstantial evidence alone may support a judgment of conviction.
30. Homicide.
Malice is not subsumed by willfulness, deliberation, and premeditation. NRS 200.030(1)(a).
31. Homicide.
Legal defense of defense of self or others justifies a homicide and negates the element of malice.
32. Homicide.
Specific intent to kill is not synonymous with malice, and thus the fact that not every murder requires a specific intent to kill does
not relieve the State of the burden to prove some kind of malice to establish murder.
33. Homicide.
To establish that a killing is murder, in prosecution for first-degree murder under provision that enumerates various means of
causing death, State must prove that the killer acted with malice aforethought, i.e., with the deliberate intention unlawfully to take life
or with an abandoned and malignant heart, and must prove one of the enumerated means to establish that the murder is of the first
degree. NRS 200.020, 200.030(1)(a).
........................................
34. Homicide.
Child abuse is not conclusive evidence of malice when first-degree murder is charged under provision that enumerates several
possible means of willful, deliberate, and premeditated killing. NRS 200.030(1)(a), (6)(a).
35. Criminal Law.
Where a jury-instruction error is not structural in form and effect, supreme court will review for harmless error improper
instructions omitting, misdescribing, or presuming an element of an offense; overruling Thompson v. State, 108 Nev. 749, 838 P.2d
452 (1992).
36. Homicide.
Erroneous instruction in first-degree murder prosecution, that child abuse was conclusive evidence of malice, was subject to
harmless-error review. Error in question was not structural in form and effect. NRS 200.030(1)(a), (6)(a).
37. Homicide.
Improper instruction that child abuse was conclusive evidence of malice was harmless beyond a reasonable doubt in first-degree
murder prosecution arising from death of three-year-old son of defendant's girlfriend, in light of other proper instructions,
overwhelming evidence of express and implied malice, and jury's finding as aggravating circumstance in penalty phase that killing of
victim involved torture. NRS 200.030(1)(a), (6)(a).
38. Criminal Law.
Harmless-error inquiry requires reviewing court to ask and answer whether it is clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error.
Proposed evidence that three-year-old victim's mother, who was defendant's live-in girlfriend, had interest in the occult, had once
received an abortion, and allegedly lacked remorse over victim's death was irrelevant as mitigating evidence at penalty phase of capital
murder prosecution arising from alleged child abuse by defendant. NRS 175.552(3), 200.030(1)(a).
No case law or statute requires admission of witness character evidence in a penalty hearing.
Questions concerning the admissibility of evidence during the penalty phase of a capital murder trial are generally left to the trial
judge's discretion.
Death sentence in capital murder prosecution arising from death of three-year-old son of defendant's live-in girlfriend was not
imposed under influence of passion, prejudice, or any arbitrary factor and was not excessive. Jury properly found that aggravating
circumstances of victim's age and defendant's torture of victim outweighed six mitigating circumstances including no significant
criminal history, lack of intent to kill, and no flight of any kind. NRS 177.055(2), 200.030(1)(a), 200.033.
Mitigating circumstance of lack of intent to kill does not prohibit imposition of death penalty in capital murder prosecution.
........................................
OPINION
Appellant Thomas Collman was convicted of first-degree murder and sentenced to death for killing
three-year-old Damian Stach, the son of Lory Stach, Collman's live-in girlfriend.
On appeal, Collman challenges various evidentiary and other rulings of the district court. None of
these challenges warrant relief. Although we conclude that the jury was erroneously instructed in the
guilt phase that child abuse constituted conclusive evidence of malice aforethought, we conclude that the
error was harmless. We therefore affirm Collman's conviction and sentence of death.
FACTS
Damian was born to Stach and her ex-boyfriend, Warren Williams, on January 5, 1993. Stach was
apparently a loving, affectionate mother, and Damian a happy, healthy, and energetic baby.
In September 1994, Stach moved to Las Vegas, Nevada. Stach soon met Collman, and they began dating.
Shortly thereafter, Stach became pregnant with Collman's child. Stach, Collman, and two-year-old Damian
then moved into a house together.
Collman and Stach decided to move to Ely, Nevada, where Collman would train for a position as a prison
guard at the Ely State Prison. In order to save money, Stach, Collman, and Damian moved into the home of
Collman's parents in Las Vegas. On June 3, 1995, Collman moved to Ely to begin his training, and Stach
and Damian remained at the Collman residence.
Damian's brother, Darian, was born in August 1995. In October 1995, Stach, Damian, and Darian joined
Collman at the Cross Timbers Trailer Park in Ely. In November 1995, Stach started noticing that Damian
was losing his hair and that he bruised easily. She could not afford to take Damian to the doctor; however,
she falsely told people that she had sought medical care for him and discovered that Damian had a disease.
Stach's brother, Richard Stach, sent her $300.00 to take Damian to the doctor; instead, Stach spent the
money on household bills and Christmas presents. Around this time, Damian became shy, withdrawn, and
lethargic.
In December 1995, the family rented a house with a basement on Avenue E in Ely. The carpeted stairs to
the basement did not have a railing, but had a T-shaped landing in the middle dividing the stairway into two
sections of six steps each.
On January 19, 1996, Collman was home sick and slept until noon. At about 7 a.m., Stach and the
children were awake, and Stach discovered that Damian had eaten a whole pack of bubble
gum and some taco shells.
........................................
Stach discovered that Damian had eaten a whole pack of bubble gum and some taco shells. Stach swatted
Damian on his buttocks and sent him to his room. At noon, when Collman awakened, Stach told him what
Damian had done that morning. Collman called Damian over to him and asked about the incident. Damian lied
and said he did not eat the gum or the taco shells; therefore, Collman swatted Damian for lying and sent him to
his room.
Stach left the house at approximately 12:20 to 12:30 p.m. to do some errands. Collman, Damian, and Darian
stayed at the house. According to Collman, he saw Damian go into the kitchen with the family dog following. He
then heard Damian scream and a loud thud, like something hit a wall. Collman ran to the kitchen and looked
down the stairs leading to the basement. He saw Damian lying at the bottom, crumpled up. Collman apparently
attempted cardiopulmonary resuscitation (CPR) on Damian, but was unable to do so because the smell of
Damian's vomit made Collman feel sick.
Collman called the office of Jamie Sullivan, where he knew Stach was completing an errand. He told
Sullivan to tell Stach that Damian fell down the stairs, Damian was turning blue, and she should get her fucking
ass home immediately. Sullivan testified that Collman sounded angry on the phone. Collman failed to call 911;
rather, he put on his clothes, picked up Damian, and ran outside and toward the hospital. When Stach received
the message from Sullivan, she immediately drove home where she encountered Collman running in the street
with Damian in his arms. All together Stach was away from the house for approximately twenty to thirty
minutes. They rushed to the hospital, arriving at 12:53 p.m., and Collman told Stach that Darian was still at
home alone and she should return to pick him up.
At the hospital, the medical personnel unsuccessfully attempted for thirty minutes to resuscitate Damian, who
was dead on arrival. Members of the medical staff testified that Damian was nonresponsive, bluish in color, and
exhibited no signs of life when they began lifesaving procedures. They further testified that Damian was covered
by overlapping bruises of various ages and possible bite marks. The bruises covered Damian's arms, legs, neck,
face, head, abdomen, perineum (the area between the genitals and anus), rectum, penis, and testicles. Due to the
amount, age, and areas of bruising, members of the medical staff testified that Damian's injuries were
inconsistent with a fall down the stairs. Members of the medical staff testified that a story that the child fell down
the stairs, the guardian's failure to call 911, the existence of overlapping bruises of varying ages, and
inconsistency of the bruises with the guardian's story are all indicators of child abuse.
........................................
the bruises with the guardian's story are all indicators of child abuse.
Dr. Ellen Clark, the medical examiner who performed the autopsy on Damian, testified that the cause of
Damian's death was asphyxia leading to brain swelling, arrhythmia due to bruising around the heart, and/or
multiple blunt trauma impact. She further testified that she found no bubble gum in Damian's airway. Dr. Clark
explained that Damian apparently died from his body being placed in an awkward position where his knees were
very forcefully and acutely bent and pulled all the way up to his chest, compressing his chest muscles. Such
compression restricted Damian's breathing and disturbed the regulation of his heartbeat. This position would also
leave Damian's buttocks and genital area exposed. The multiple trauma would additionally cause fat particles to
break off and travel through Damian's body into his lungs and kidneys.
Dr. Clark examined and removed Damian's spinal cord and discovered that it was not injured; had it been
injured, such an injury could have been consistent with a fall downstairs. Dr. Anton Sohn, Collman's medical
expert, examined only photographs of the removed spinal cord. He testified that Damian died from spinal cord
injury, not blunt trauma, indicating that Damian did die from falling.
Shortly after Damian's death, Stach called her brother, Richard, who immediately went to Ely with his
girlfriend, Ana Flores. Collman's parents also went to Ely. On January 20, 1996, a search warrant was issued to
search the house on Avenue E, requiring that Stach and Collman leave the house for a few days; during this time,
they shared a motel room with Richard and Flores. Damian's funeral took place in San Mateo, California in early
February 1996.
Eventually, investigations led the police to arrest Collman and charge him with murder. They also arrested
Stach, charging her with child abuse and neglect causing substantial bodily harm. On June 20, 1996, the State
filed a notice of intent to seek the death penalty against Collman based on two aggravating factors: the murder
was committed by torture, and the victim was under fourteen years of age.
On June 24, 1996, Stach pleaded guilty to child neglect causing substantial bodily harm for permitting
Damian to remain with a man she knew abused him.
1
In exchange for this plea, she agreed to testify
truthfully against Collman.
__________

1
No allegations were made that Collman or Stach abused or neglected Damian's brother, Darian. After the
events in this case, Richard became Darian's guardian.
........................................
agreed to testify truthfully against Collman. Collman's trial commenced June 16, 1997.
Further evidence presented by the State
The State presented evidence of Collman's prior abuse of Damian, his general treatment of Damian, and his
lack of remorse over Damian's death.
In January 1995, when Richard and Flores visited Collman and Stach in Las Vegas, Stach asked Collman to
bathe Damian so she could wash the dishes. Collman refused, replying, It's not my fucking kid.
In February 1995, Damian's paternal grandmother and his great aunt visited Las Vegas. They observed
Collman become very agitated when Damian would cry, and Collman stated that the next time he had to watch
Damian, he would throw Damian in the swimming pool and make it look like an accident.
Also in February 1995, Collman hit Damian on the buttocks with a piece of wood from a broken chair,
leaving a large, dark purple bruise across both buttocks and extending down his legs. When Stach confronted
Collman about the severe bruise, he instructed her to tell people that Damian fell; Stach complied. Collman
testified at trial that Damian had headed for the pool, and because Damian did not know how to swim, Collman
hit him with the wood to stop him.
In May 1995, Stach's friend, Monique Shaw, was at Collman and Stach's house. Damian was running down
the street with the dog when Collman yelled to Damian to come back. Damian was laughing and did not
respond to Collman. Collman stormed over to Damian, grabbed his shoulder, swung him around, and shook
him. Collman had his hand up as if to hit Damian and brought his hand down. Shaw observed Damian jerk as if
he had been hit. Damian started crying and ran to Stach.
Around the end of May 1995, shortly before Collman left for Ely, he spent a week working on a landscaping
job with his friend, Michael Palombo. During this week, Collman brought Damian to the job site everyday. One
day, Damian was sitting in the truck when he soiled himself. Collman was very angry and dragged Damian
from the truck, held him up in the air by one of Damian's arms, and sprayed him full blast with a hose. Damian
cried during this incident. On another day, Palombo noticed Collman yelling loudly at Damian and poking him
hard in the chest. At one point, Collman made a fist and reached back as if to hit Damian, when Palombo yelled
to Collman not to hit Damian. Collman replied, It teaches the kid to show me respect.
........................................
Sometime between June and October 1995, Collman and his friend, Robert Marcum, were talking about
disciplining their children. Marcum confided to Collman that he once spanked his son, Ian, too hard. Marcum
explained that after he did it, he was very upset with himself, hugged Ian, and told Ian that he loved him. In
response, Collman told Marcum that he had hit Damian too hard and left bruises.
Sometime between October 1995 and January 1996, Stach, Collman, and Damian were at the McDonald's in
Ely when they saw Marcum and Ian there. Marcum testified that Damian looked pale, sickly, and blotchy; he
soon realized that Damian's face was very bruised. Damian and Ian played in the Playland and returned to the
adults just as Collman brought the food from the counter. In a voice loud enough to attract attention, Collman
said, Damian, where did you get those bruises? According to Marcum, Damian had no more bruises after
returning from Playland than he did before playing. Marcum found Collman's behavior strange and his question
to Damian contrived. Marcum was so concerned for Damian's welfare that he called Support, Inc., the town's
support group service. The record does not reflect the result of Marcum's phone call.
In November 1995, Damian had diarrhea which leaked out of his diaper and ran all over himself. Stach
cleaned him up and told Collman what happened. Collman stated that little boys should not do that and spanked
Damian with a plastic slotted spoon on his naked buttocks three to five times.
Sometime between December 1995 and January 1996, Stach punished Damian for misbehaving by making
him stand in the corner. Damian was fidgeting with his hands, so Stach told him to stop. When Damian
continued to fidget, Collman used duct tape to tape Damian's hands together and to the wall high above Damian's
head. When Damian started screaming hysterically, Stach made Collman let Damian loose. The incident lasted
only ten to twenty seconds, and Collman testified that the tape did not stick.
In January 1996, a woman observed Collman, Stach, and Damian at a store. She noticed that Damian was
very bruised and became concerned for his welfare. She said hello to Damian, who looked frightened, and told
Collman that she would love to take Damian home with her. The woman testified that Collman replied in a
serious tone that he would give her five dollars to take him. She also noticed Collman speak to Damian in a
harsh, stern, and cold way, causing Damian to cry. The woman explained that she was unable to report this
incident to the authorities because no license plate was on Collman and Stach's car.
........................................
Throughout most of the time that Collman and Stach lived together, Damian almost always had bruises; the
bruising became more regular after Stach, Damian, and Darian joined Collman in Ely in October 1995.
2
Stach
testified that when she would return from errands after leaving the boys with Collman, Damian would have
unexplained bruises. Collman repeatedly told Stach that Damian fell and instructed her to tell people the same.
Stach testified that she complied with this request because she did not want to believe that Collman was harming
Damian. Stach also discovered new bruises on the evening before Damian's death.
In November 1995, Damian began losing his hair, possibly due to stress. Starting in December 1995, within
a month of Damian's death, he became withdrawn, serious, sad, and less vivacious, and he stopped being
affectionate with Collman.
Many witnesses testified that Collman was not upset or emotional at the hospital on January 19, 1996. Within
the couple of weeks following Damian's death, Collman repeatedly stated that he thought he was going to prison.
He was also very defensive when any family member would question him about what had happened and would
state that the hospital must have caused all Damian's bruises. In addition, one day the family was watching
videotapes of Damian, and one showed Collman giving Damian a fake punch; Collman stated that they had
better not show that videotape again. Further, Collman acted angry, impatient, uncomfortable, and irritated when
Stach would cry over Damian's death.
In early February 1996, while in San Mateo, California for Damian's funeral, Collman propositioned Stach
for sex and complained that they had not had sex for a long time. When she refused because she was still
distraught, he responded that they were still a couple.
In April 1996, when the police transported Collman from Las Vegas to Ely for questioning, he continually
asked what Stach had told them and stated that she better not have sold me out for some stupid reason.
Evidence presented by Collman
Collman presented three theories of defense: that Damian died from a fall down the stairs; that Stach, not
Collman, was Damian's abuser and killer; and that Damian died from choking on the bubble gum he had eaten
the morning of his death.
To support his theory that Damian died from falling down the stairs, Collman presented testimony from his
expert witness, Dr. Sohn, that Damian's death was the result of a spinal cord injury consistent
with a fall.
__________

2
Apparently, Damian did not bruise excessively between June and October 1995, when Collman was in Ely
and Damian was in Las Vegas. However, one of Damian's particularly serious facial bruises in December 1995
evidently resulted when the dog accidentally knocked Damian into a fence post.
........................................
Sohn, that Damian's death was the result of a spinal cord injury consistent with a fall. Further, Collman testified
that when he was lying on the couch, he heard Damian scream and then a thud. Collman stated that he found
Damian at the bottom of the stairs and was unable to resuscitate him with CPR. Collman claimed that he did not
call 911 because he believed that the ambulance would come from McGill (a town about twelve miles outside
Ely).
To support his theory that Stach had abused Damian and caused his death, Collman presented several
incidents in which Stach allegedly abused Damian and was generally a bad mother, including the following.
In 1993, after Damian was born, Stach was frustrated with Damian's crying and eating habits and would have
others help her care for him. She once slapped Damian's leg for being uncooperative when she was changing his
diaper. One witness testified that when Damian was learning to walk and used a walker, Stach allegedly kicked
the walker, sending it flying across the room until Damian smashed into the wall. Stach testified that in fact
Damian was about to reach a sharp knife and out of fear she pushed away Damian's walker, which rolled to the
other side of the room, tapping the wall.
In December 1994, Stach and Damian were staying in a hotel room with Flores and Richard in Santa Fe,
New Mexico. Damian had been acting up all day and repeatedly made racial slurs about an African-American
man who was walking outside the hotel window. Stach told him to stop, but he continued to repeat the epithet.
Stach slapped Damian across the face with the back of her hand; Stach's ring cut Damian's lip, which started
bleeding. Stach testified that she felt very bad about this incident and had not intended to injure Damian as she
had.
In October 1995, Stach brought Damian over to Rick and Kim Colon's house. Rick Colon was Collman's
friend from prison guard training. Stach pulled down Damian's pants to show them his bruises and proudly
announced, That's what bad boys get at my house. Stach suggested to the Colons that they discipline their
children the same way. Rick Colon testified that he felt uncomfortable around Stach and felt concerned for
Damian's welfare. However, he did not call the authorities on Damian's behalf.
On Halloween 1995, Stach, Kim Colon, Shelley Muir, and their children went trick-or-treating. Damian was
costumed as a football player, and Muir commented on Damian's authentic black-eye makeup. Stach allegedly
replied in a serious tone, What makeup? The little bastard did something wrong today, and I had to reprimand
him. Further, after the children got tired of walking, both Muir and Kim Colon picked up their children and
carried them home, while Stach made Damian walk the whole way, calling him lazy when he would fall down.
........................................
Sometime after Halloween 1995, when Kim Colon was at Stach's residence, Damian turned on the propane
gas tank for the stove. Stach, who was about to light a cigarette, saw what Damian did and punished him by
hitting his naked buttocks with a spatula, causing a bruise. Stach testified that she punished him severely only
because his action caused her great fear; if she had lit her cigarette, the house could have blown up from the
propane.
Shortly after the spatula incident, Stach and Damian visited the Colons' house, when their son, Christopher,
and Damian started to turn on the propane gas tank on the stove. Kim Colon testified that Stach punished
Damian by hitting his hands with a wooden spoon fifteen to twenty times, and Kim Colon did not hit
Christopher. Stach testified that Kim Colon punished Christopher by hitting his hands a couple of times with a
wooden spoon, and therefore, Stach did the same to Damian because she believed that the punishments should
be equal.
In December 1995, Damian was standing near Stach, who was smoking a cigarette. Stach bent over to pick
up a puppy and accidentally burned Damian in the forehead with the cigarette. Stach would also trip Damian
with a child's hockey stick as he walked by her. She testified that this was done playfully and not intended to hurt
Damian.
In support of his third theory, that Damian died from choking on bubble gum, Collman testified that Damian
had eaten a whole pack of gum the morning of his death. At the hospital, Collman had suggested to the medical
personnel that Damian may have choked on the gum. Further, members of the medical staff testified on
cross-examination that they had difficulty putting an endotracheal tube down Damian's throat, indicating a
blockage. This evidence was impeached by testimony that the blockage was mucous, which very commonly
forms in the throat of abused children due to crying. Additionally, Dr. Clark testified that during the autopsy, she
found no gum in Damian's throat. She further stated that had the gum lodged in Damian's throat at 7 a.m., when
he ate the gum, he would have choked right away and not five and a half hours later.
Collman's conviction and sentence
On July 9, 1997, the jury returned a guilty verdict of first-degree murder against Collman. At the conclusion
of the penalty phase, the jury found two aggravating factors: torture and victim under fourteen years old. The
jury also found six mitigating circumstances: no significant criminal history; job history; cooperation with law
enforcement; lighter sentence for Stach; lack of intent to kill; and no flight of any kind. After determining that
the mitigating circumstances did not outweigh the aggravating circumstances, the jury sentenced Collman to
death.
........................................
On September 8, 1997, the district court sentenced Collman to death and sentenced Stach to a term of eight
to twenty years in prison. Collman's judgment of conviction and notice of appeal were filed that same day.
DISCUSSION
I. Denial of motions to excuse two potential jurors for cause
[Headnote 1]
Collman contends that the district court erred by failing to excuse two potential jurors for cause. Both had
read about the case in the newspaper and had heard others talk about it. Collman eventually removed one by
peremptory challenge, but the other served on the jury.
NRS 175.036(1) permits either party to challenge an individual juror for cause if she could not adjudicate
the facts fairly. NRS 16.050(1) lists grounds upon which a juror may be dismissed for cause, including:
(f) Having formed or expressed an unqualified opinion or belief as to the merits of the action, or the
main question involved therein; but the reading of newspaper accounts of the subject matter before the
court shall not disqualify a juror either for bias or opinion.
(g) The existence of a state of mind in the juror evincing enmity against or bias to either party.
In this case the district court questioned both potential jurors closely, and both consistently informed the
court that they could be fair and impartial. The court determined that neither had formed any opinion or had
any bias against Collman. We conclude that the court did not err in refusing to excuse either potential juror for
cause. Cf. Thompson v. State, 111 Nev. 439, 441-43, 894 P.2d 375, 376-77 (1995); Bryant v. State, 72 Nev.
330, 332-35, 305 P.2d 360, 361-62 (1956).
II. Evidence of other acts by a state witness
Collman attempted to introduce evidence of other acts by Stach to impeach her credibility or to show that
she was responsible for Damian's death. The evidence fell into three types. The district court did not admit any
of the evidence, and Collman asserts that in each case the court erred.
[Headnotes 2, 3]
NRS 48.045(2) prohibits the admission of evidence of other crimes, wrongs, or acts to prove a person's
character, but such evidence may be admissible for other purposes. In order to determine admissibility of those
acts, the district court must determine that "{1) the incident is relevant to the crime charged;
........................................
that (1) the incident is relevant to the crime charged; (2) the act is proven by clear and convincing evidence;
and (3) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.
Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997). The decision to admit or exclude evidence
rests within the trial court's discretion, and this court will not overturn that decision absent manifest error. Daly
v. State, 99 Nev. 564, 567, 665 P.2d 798, 801 (1983).
The witness's alleged interest in vampirism, biting, and devil worship
[Headnote 4]
On October 24, 1996, Collman moved the district court to admit evidence that Stach allegedly had an
interest in vampirism, biting, and devil worship in order to prove that she, and not Collman, had abused
Damian resulting in his death. After an evidentiary hearing, the district court denied Collman's motion. Using a
less stringent standard than when the State requests admission of prior acts by the defendant,
3
the district
court concluded that the probative value of the evidence was substantially outweighed by the danger of
confusing the issues and misleading the jury. See NRS 48.035(1). After a review of the evidence that Collman
requested be admitted, we conclude that the district court did not abuse its discretion by excluding it.
The witness's abortion
[Headnote 5]
During Stach's testimony on direct examination that she did not work and stayed home with the kids, she
stated that she loved being pregnant. Prior to cross-examination and outside the jury's presence, the defense
requested permission to impeach Stach's statement by questioning her about an abortion she had previously
undergone. The district court conducted the requisite balancing test pursuant to NRS 48.035(1) between
probative value and danger of unfair prejudice. The court concluded that the information about Stach's
abortion was a collateral matter and the minimal value of it was "overwhelmingly outweighed" by
the danger of unfair prejudice, confusing the issues, and misleading the jury.
__________

3
The district court followed the decision in United States v. Stevens, 935 F.2d 1380, 1404-05 (3rd Cir. 1991),
which used a reduced standard when determining whether prior act evidence introduced by the defendant
should be admitted. The United States Court of Appeals for the Third Circuit held that in such a situation, the
trial court need only decide that the prior act evidence has a tendency to negate the defendant's guilt and that
the probative value is not substantially outweighed by the danger of unfair prejudice. Id. at 1405. Because no
risk of prejudice to the defendant is present if the acts are admitted, the Third Circuit concluded that a less
stringent standard is justified. Id. at 1404.
........................................
value of it was overwhelmingly outweighed by the danger of unfair prejudice, confusing the issues, and
misleading the jury.
Collman contends that the district court abused its discretion and permitted Stach to lie with impunity
about her feelings toward pregnancy. We disagree.
[Headnote 6]
NRS 50.085(3) permits impeaching a witness on cross-examination with questions about specific acts as long
as the impeachment pertains to truthfulness or untruthfulness and no extrinsic evidence is used. Impeachment on
a collateral matter is not allowed. McKee v. State, 112 Nev. 642, 647, 917 P.2d 940, 943 (1996).
The district court was correct that whether or not Stach once had an abortion is collateral to the issue of who
killed Damian. It was also correct that any probative value the evidence might have was substantially
outweighed by the danger of unfair prejudice, confusing the issues, and misleading the jury. We conclude that
the district court did not abuse its discretion in disallowing impeachment on this question.
The witness's alleged lack of remorse over the victim's death
The State presented evidence of Collman's lack of remorse through testimony that Collman propositioned
Stach for sexual relations around the time of Damian's funeral. Stach testified that she had refused Collman's
advances because she was too emotionally distraught over Damian's death. In response, the defense wanted to
present evidence of Stach's lack of remorse through her alleged sexual conduct shortly after Damian's death.
Specifically, the defense wanted to present evidence that Stach had allegedly propositioned Kim Colon for sex
and had allegedly had a sexual affair with Ana Flores. The district court conducted an evidentiary hearing to
determine whether these prior acts were admissible.
At the evidentiary hearing, Collman's parents each testified as to an alleged incident occurring between
Flores and Stach on January 21, 1996. Further, Kim Colon testified that while Stach was temporarily living
with her in February 1996, Stach propositioned her. The district court denied Collman's motion, concluding
that the information was irrelevant, prejudicial, and incredible.
[Headnote 7]
Collman argues that the district court abused its discretion by excluding this evidence. See Daly, 99 Nev. at
567, 665 P.2d at 801 (holding that the trial court has the discretion to admit or exclude evidence). We conclude
that evidence regarding Stach's lack of remorse was relevant to Collman's defense that Stach was
the real killer.
........................................
remorse was relevant to Collman's defense that Stach was the real killer. Because the district court admitted
evidence that Collman lacked remorse over Damian's death, Stach's lack of remorse was equally relevant.
Therefore, the district court incorrectly concluded that the evidence was irrelevant.
[Headnote 8]
Nevertheless, our review of the record reveals that Collman's allegation of Stach's sexual conduct was not
proven by even a preponderance of the evidence, let alone clear and convincing evidence. The record reflects
that the testimony of Collman's parents was inconsistent and implausible and that Kim Colon had animosity
toward Stach. Kim Colon further admitted that she had previously lied to a police officer who interviewed her
and that she would lie to protect herself. Accordingly, the district court did not abuse its discretion by excluding
such evidence.
III. Evidence of other acts by appellant
[Headnote 9]
Collman claims that evidence that he had been transferred at work was improperly admitted as character
evidence. To reiterate, in order to admit evidence of a person's other crimes, wrongs, or acts, the district court
must determine that the other act is relevant for an admissible purpose, that it was proven by clear and
convincing evidence, and that the probative value of the act is not substantially outweighed by unfair prejudice.
NRS 48.045(2); Tinch, 113 Nev. at 1176, 946 P.2d at 1064-65. This court will not overturn a district court's
decision to admit or exclude evidence absent an abuse of discretion. Daly, 99 Nev. at 567, 665 P.2d at 801.
The State presented testimony that in December 1995, Collman felt stress from working in the lockdown unit
of the prison, Unit 2, a difficult and dangerous section also known as the prison within the prison. Collman
mentioned to a co-worker that he also felt stress at home because Damian was getting into things, was out of
control, and did not listen to Collman. For his benefit, Collman transferred to a less stressful unit for two weeks
before returning to his original post in Unit 2.
Prior to admitting this testimony, the district court conducted an evidentiary hearing and determined that the
temporary transfer was relevant to show that Collman was under stress shortly before Damian's death. The court
also determined that the probative value of the evidence of the nondisciplinary transfer was not substantially
outweighed by the danger of unfair prejudice.
We conclude that based on the district court's reasoning and the record as a whole, the court did not abuse its
discretion.
........................................
IV. Evidence that appellant had been in jail
[Headnotes 10, 11]
Collman argues that the district court erred by denying his motion for a mistrial based on references made
to his being in jail. Reference to a defendant's prior criminal history may be reversible error. See Witherow v.
State, 104 Nev. 721, 724, 765 P.2d 1153, 1155 (1988). The test for determining if such a reference occurred is
whether the jury could reasonably infer from the evidence presented that the defendant had engaged in prior
criminal activity. Id.
During the prosecutor's direct examination of Collman's friend, Robert Marcum, the following exchange
took place.
Q. Now, do you recalldo you remember when that happened when you went to pick up this
mattress?
A. Hum, it was actually the sameI guess he was in jail down in Las Vegas. And it was supposedly
he was getting out of jail that day.
. . . .
Q. . . . . Do you remember how long after [Damian's death] that could have happened?
A. Not exactly. That's the best way I can.
Additionally, during defense counsel's cross-examination of another of Collman's friends, Michael Palombo,
Palombo also mistakenly and briefly revealed that Collman was in jail.
Shortly thereafter, outside the jury's presence, Marcum testified that although the prosecutor had
specifically instructed him not to, he mistakenly revealed that Collman was in a Las Vegas jail in approximately
February 1996. (The record does not divulge why Collman was in jail.) Marcum stated, It just came out. I
justyou know, I wasn't thinking about it. At the conclusion of this hearing, Collman moved for a mistrial.
The district court denied the motion, stating that the slips were inadvertent, Marcum and Palombo did not
disclose why Collman was in jail, and the jury could easily think that Collman was in jail due to the present
matter.
[Headnotes 12, 13]
After reviewing the references made and the hearing afterward, we conclude that the remarks improperly
referred to Collman's prior criminal history but were harmless. Thus, the district court did not err in denying
the motion for a mistrial. Palombo's and Marcum's statements that Collman was in jail were not made or
elicited by the prosecutor; they were brief, inadvertent comments made by inexperienced witnesses in the midst
of a long and complicated trial. Additionally, Marcum stated that he was in jail and did not use
Collman's name.
........................................
and did not use Collman's name. While the jury may have realized that he was Collman, that fact was not
emphasized. Moreover, in the penalty phase, the jury found as a mitigating factor Collman's lack of a criminal
history. We are convinced, therefore, that Collman was not prejudiced by the witnesses' remarks.
V. The videotape of the victim when he was a healthy baby
[Headnote 14]
Richard Stach testified as to Damian's demeanor prior to Collman's involvement in Damian's life. During
this testimony, the State sought admission of a videotape depicting Damian as a happy baby with no bruises.
The district court conducted a hearing and viewed the videotape. The court concluded that because the
videotape's quality was deficient, it could not be used to demonstrate Damian's lack of bruises. However, the
court determined that the probative value of establishing Damian's demeanor was not substantially outweighed
by the danger of unfair prejudice or emotional appeal to the jury. Accordingly, over Collman's objection, the
court admitted the videotape for that limited purpose.
[Headnotes 15, 16]
Collman contends that the videotape had no probative value and only served to appeal to the jurors'
emotions. The trial court has the discretion to admit or exclude photographs of a victim, and this court will not
overturn such a ruling absent an abuse of that discretion. Browne v. State, 113 Nev. 305, 314, 933 P.2d 187,
192 (1997). The court must determine whether the probative value is substantially outweighed by the danger of
unfair prejudice. Id. at 313 n.1, 933 P.2d at 192 n.1. Here, the district court reviewed the videotape and
determined that it was relevant and probative. We conclude that Collman failed to demonstrate that the district
court abused its discretion.
VI. Report by the state's expert regarding bite marks on the victim's body
[Headnote 17]
Collman contends that the district court erroneously admitted a report made by the state's forensic expert.
Dr. Raymond D. Rawson, the state's expert witness, prepared a forensic report, Exhibit 96, concluding that
Damian suffered nine separate bite marks and with a high degree of confidence that Collman was the biter.
Dr. Rawson testified to this opinion at trial. The defense utilized the report to cross-examine Dr. Rawson and
even showed a photograph in the report to the jury. Based on this use of the report by Collman, the
State asked that the whole report be admitted.
........................................
this use of the report by Collman, the State asked that the whole report be admitted. The defense objected,
arguing that Dr. Rawson had not testified to all portions of the report. Specifically, Dr. Rawson's report referred
to nine bite marks on Damian's body, while Dr. Rawson's testimony focused on only three of the most severe and
obvious bites. The district court admitted the report into evidence.
Collman argues that the district court erroneously admitted the entire report. We conclude that this argument
has no merit pursuant to NRS 47.120(1), which provides: When any part of a writing or recorded statement is
introduced by a party, he may be required at that time to introduce any other part of it which is relevant to the
part introduced, and any party may introduce any other relevant parts. See also Domingues v. State, 112 Nev.
683, 693-94, 917 P.2d 1364, 1372 (1996).
Here, Collman in effect introduced portions of the report during cross-examination of Dr. Rawson. Under
NRS 47.120(1), the State was permitted to introduce any other relevant parts. The entire report was relevant to
the case because evidence of bite marks tended to prove that Damian was an abused child. Further, Dr. Rawson's
testimony referred to his overall conclusion that nine bite marks were present and that Collman caused them all;
therefore, contrary to Collman's contention, the entire report contained information to which Dr. Rawson
testified. We conclude that the district court did not err in admitting the report.
VII. Defense evidence regarding bite marks on the victim's body
[Headnote 18]
The State presented evidence that Damian had several bite marks on his body. While one mark on his
forearm was indisputably a bite mark, the parties vigorously litigated whether the other marks were bites. Dr.
Norman Sperber was one of three defense experts in forensic dentistry. All three experts agreed that Damian
had one bite mark on his arm, but ruled out the other marks as bites. Outside the presence of the jury, Dr.
Sperber testified that he became involved with this case while at a conference attended by law enforcement
agents and other forensic dentists. One of the police officers assigned to the instant case showed Dr. Sperber
Damian's photographs and a report written by the state's forensic dentist expert. Dr. Sperber showed the
photographs and/or portions of the report to his colleagues at the conference. Those colleagues apparently
opined based solely on the photographs that Damian possessed only one bite mark on his forearm. Collman
moved the district court to permit Dr. Sperber to testify to his colleagues' statements.
........................................
to testify to his colleagues' statements. The district court denied the motion because the statements were not
reliable.
Arguing that the district court erred by excluding the statements, Collman cites NRS 51.075(1) and Emmons
v. State, 107 Nev. 53, 807 P.2d 718 (1991). NRS 51.075(1) provides: A statement is not excluded by the
hearsay rule if its nature and the special circumstances under which it was made offer assurances of accuracy not
likely to be enhanced by calling the declarant as a witness, even though he is available. In Emmons, the district
court permitted the testifying medical examiner to discuss the concurring opinion of her colleague, a radiologist,
regarding certain medical evidence. Additionally, the court admitted a letter written by the radiologist outlining
his opinion. Emmons, 107 Nev. at 57, 807 P.2d at 720. This court concluded that the trial court did not err by
admitting the testimony and letter pursuant to NRS 51.075 because the radiologist was a disinterested witness
with no motive to lie. Id. at 57, 807 P.2d at 721.
[Headnote 19]
Collman argues that this case is like Emmons because the doctors at the conference were disinterested
witnesses with no motive to lie; therefore, assurances of accuracy exist. We conclude that while Dr. Sperber's
colleagues may have been disinterested with no motive to lie, the requisite assurances of accuracy are not as
strong as those in Emmons. Specifically, the radiologist in Emmons wrote a letter discussing the medical
evidence and why he agreed with the medical examiner. It also appears that the two doctors consulted
extensively. By contrast, in the present case, Dr. Sperber only showed his colleagues photographs of Damian's
body. They did not possess molds of Collman's, Stach's, and Damian's teeth, they did not read reports by the
state's expert, and they did not view Damian's body. Further, each colleague apparently looked over the
photographs for only a few minutes each in between seminars at the conference. Accordingly, because calling
those colleagues to the stand was the only way to test the accuracy of their hearsay statements, we conclude that
Dr. Sperber's proposed testimony of his colleagues' opinions does not fall within the exception in NRS 51.075.
4
Therefore, we conclude that the district court did not err in excluding that testimony.
__________

4
Collman does not make this argument, but we note that the evidence in question was also not admissible
under NRS 50.285(2), which provides that facts or data need not be admissible in evidence if they are of a
type reasonably relied upon by experts in forming opinions or inferences. This provision might have provided
the best basis for admitting the evidence in Emmons since the radiologist's considered opinion set forth in a letter
appears to be information which an expert like the medical examiner would reasonably rely on. By contrast, we
conclude that Dr. Sperber's recollection of oral
........................................
VIII. Impeachment of a defense witness
[Headnote 20]
Rick Colon testified for the defense that Stach proudly displayed bruises she allegedly inflicted on Damian.
He testified that due to Stach's behavior, he was concerned for Damian's welfare. On cross-examination, the
State asked whether he had called the authorities to report Stach as a child abuser. The defense objected,
arguing that failure to call the authorities is not proper impeachment. The district court overruled the objection,
permitting Rick Colon to answer. Rick Colon testified that he did not call the authorities to report Stach and
that he also refused to speak with the police or prosecutors about this case because he preferred to keep them
in the dark.
Collman argues that the State improperly impeached Rick Colon. Collman cites only to two New York cases
which hold that a prosecutor may not impeach an alibi witness based on the witness's failure to inform the
police of the alibi and that no inference may be drawn from such failure. See People v. Allen, 425 N.Y.S.2d
144, 148 (N.Y. App. Div. 1980), overruled by People v. Knight, 570 N.Y.S.2d 617 (N.Y. App. Div. 1991);
People v. Hamlin, 395 N.Y.S.2d 679, 681 (N.Y. App. Div. 1977). These cases are inapplicable in the present
matter.
[Headnotes 21, 22]
Impeachment consists of attacking a witness's credibility, which depends on that witness's willingness and
ability to tell the truth. 1 John William Strong, McCormick on Evidence 33 (4th ed. 1992). One may be
impeached with respect to such matters as perception, memory, communication, sincerity, or bias. Id. Here, the
State attempted to prove that Stach was not Damian's abuser. In asking whether Rick Colon called the
authorities, the State impeached the sincerity of his alleged concern for Damian. Further, the fact that Rick
Colon preferred not to talk to police or prosecutors suggested a bias for the defense. Accordingly, we conclude
that the State properly impeached Rick Colon.
IX. Proposed jury instruction on child abuse causing substantial bodily harm, a felony
[Headnote 23]
During the settling of the jury instructions, Collman requested an instruction on child abuse causing
substantial bodily harm, a felony, but the district court refused to give the instruction. Collman contends that
the court erred.
In Moore v. State, 105 Nev. 378, 383, 776 P.2d 1235, 1239 {19S9),
__________
comments made to him by colleagues under the circumstances he described could not be offered to jurors as
facts or data reasonably relied upon by experts in forming opinions or inferences.
........................................
(1989), this court held that the trial court must give a defendant's proffered jury instruction on a lesser related
offense if three conditions are satisfied: (1) the lesser offense is closely related to the offense charged; (2)
defendant's theory of defense is consistent with a conviction for the related offense; and (3) evidence of the
lesser offense exists.
5
Here, child abuse causing substantial bodily harm is closely related to first-degree
murder from child abuse and is supported by evidence presented by the State. We conclude, however, that the
second condition is not satisfied.
In Moore v. State, 109 Nev. 445, 446-47, 851 P.2d 1062, 1063 (1993), the jury was instructed on a lesser
related offense at the state's request and convicted the defendant of the lesser related offense. This court reversed
the conviction because the lesser related offense was inconsistent with the defendant's theory of defense, a
complete denial of culpability. This court concluded that the defendant must admit to some conduct which
constitutes the lesser crime before the jury may be instructed on the lesser related offense. Id. at 447, 851 P.2d at
1065; see Johnson v. State, 111 Nev. 1210, 1213-14, 902 P.2d 48, 50 (1995).
[Headnote 24]
Collman contends that admitting to some conduct which constitutes the lesser crime violates his Fifth
Amendment right against self-incrimination. Accordingly, he argues that he should not have to admit to any
action which caused Damian substantial bodily harm to get the lesser related offense instruction. This argument
clearly lacks merit. Collman was not compelled to admit to criminal conduct. He was merely required to
demonstrate that his theory of defense was consistent with his proposed instruction. He had no right to an
instruction which was inconsistent with his complete denial of culpability. Again, all of Collman's defense
theories consisted of denying any wrongful action on his part. He asserted that Damian fell down the stairs,
choked on bubble gum, or died from Stach's abuse. None of these defenses are consistent with Collman's claim
of inflicting substantial bodily harm upon Damian on January 19, 1996.
The district court therefore did not err by refusing to give the requested instruction.
__________

5
We note that the continuing validity of this holding is in doubt. The Moore decision adopted the reasoning
and rationale of People v. Geiger, 674 P.2d 1303 (Cal. 1984). Geiger has now been overruled by People v.
Birks, 960 P.2d 1073 (Cal. 1998). In Birks, the California Supreme Court noted that the rationale for the Geiger
decision has been unequivocally repudiated by the United States Supreme Court. Birks, 960 P.2d at 1082
(citing Hopkins v. Reeves, 524 U.S. 88 (1998)). For the purposes of this decision, however, we have applied the
standards adopted in Moore and have concluded that Collman's claim is nevertheless without merit.
........................................
X. Sufficiency of the evidence to support the conviction
[Headnote 25]
Collman contends that the evidence was insufficient to support his conviction. We reject this contention.
[Headnotes 26-29]
In reviewing the evidence supporting a jury's verdict, this court must determine whether the jury, acting
reasonably, could have been convinced of the defendant's guilt beyond a reasonable doubt by the competent
evidence. Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980). This court will not disturb a jury's
verdict on appeal where there is substantial evidence to support it. Bolden v. State, 97 Nev. 71, 624 P.2d 20
(1981). The jury determines what weight and credibility to give conflicting testimony. Id. Circumstantial
evidence alone may support a judgment of conviction. Deveroux v. State, 96 Nev. 388, 391, 610 P.2d 722, 724
(1980).
Collman asserts that Stach lied on the stand and that the evidence was just as strong that Stach caused the
fatal injuries, not he, or that Damian had died as a result of a fall down the stairs. Collman seeks to reargue the
credibility of the witnesses, particularly Stach's. The jury, however, already determined credibility in the state's
favor. Also, sufficient evidence existed to convince the jury beyond a reasonable doubt that Damian's death was
not caused by an accidental fall.
XI. The jury instruction that child abuse constituted conclusive evidence of malice aforethought
During the guilt phase, the jury received instruction number 11, which read:
There are certain kinds of murder which carry with them conclusive evidence of malice aforethought.
One of these classes of murder is murder committed by means of child abuse. Therefore, a killing which
is committed by child abuse is deemed to be murder of the first degree, whether the killing was
intentional or unintentional.
(Emphasis added.)
Collman did not challenge this instruction below or on appeal, but after reviewing the record, we ordered the
parties to provide supplemental briefs addressing whether this instruction correctly provided that child abuse
constituted conclusive evidence of malice when murder is charged pursuant to NRS 200.030(1)(a). Having
considered the supplemental briefs of the parties and of amici curiae, we conclude that instruction number 11
was erroneous,
........................................
neous, but we conclude that the error was harmless beyond a reasonable doubt in light of the other proper
instructions provided to the jury, the jury's verdicts as a whole, and the evidence in this case.
6

The types of malice and of murder
In Nevada, consistent with the common law, murder is the unlawful killing of a human being, with malice
aforethought, either express or implied.
7
NRS 200.010; see Wayne R. LaFave & Austin W. Scott, Jr.,
Criminal Law 7.1, at 605-06 (2d ed. 1986); Model Penal Code and Commentaries 210.2 cmt. 1 at 13-15
(Official Draft and Revised Comments 1980). Today, the phrase malice aforethought
does not even approximate its literal meaning. Hence it is preferable not to rely upon that misleading
expression for an understanding of murder but rather to consider the various types of murder (typed
according to the mental element) which the common law came to recognize and which exist today in most
jurisdictions: (1) intent-to-kill murder; (2) intent-to-do-serious-bodily-injury murder; (3) depraved-heart
murder; and (4) felony murder.
LaFave & Scott, Criminal Law 7.1, at 605. Originally, in addition to an intent to kill, malice included perhaps
an element of hatred, spite or ill-will, though this element is not actually necessary. Id. A cold-blooded
murderer could kill a kidnap victim, for example, simply for the sake of convenience. Nevertheless, as
demonstrated below, consistent with its ordinary connotation, malice of all four types includes an intent to act
wrongfully.
Nevada expressly recognizes three of these malicious states of mind in its statutes and case law.
8
NRS
200.020 defines express malice as the deliberate intention unlawfully to take away another's life and implied
malice as an abandoned and malignant heart. These forms of malice are, respectively, the mental elements for
intent-to-kill murder and depraved-heart murder. Nevada statutes and this court have apparently never employed
the phrase depraved heart, but that phrase and abandoned and malignant heart" both refer to the
same "essential concept . . . one of extreme recklessness regarding homicidal risk."
__________

6
Cause appearing, we deny Collman's motion to allow supplemental oral argument on this issue, filed
December 20, 1999.

7
Nevada's statutory definition of murder also extends beyond the common law, including the unlawful killing
of a human being caused by a controlled substance which was sold, given, traded or otherwise made available
to a person in violation of chapter 453 of NRS. NRS 200.010.

8
Nevada law has apparently never expressly addressed intent-to-do-serious-bodily-injury murder, but this
court has recognized the concept in regard to murder perpetrated by means of lying in wait. See note 13 and the
accompanying text below.
........................................
malignant heart both refer to the same essential concept . . . one of extreme recklessness regarding homicidal
risk. Model Penal Code 210.2 cmt. 1 at 15; see also Thedford v. Sheriff, 86 Nev. 741, 744, 476 P.2d 25, 27
(1970) (malice as applied to murder includes general malignant recklessness of others' lives and safety or
disregard of social duty). NRS 200.030(1)(b) defines felony murder, in which [t]he felonious intent involved
in the underlying felony may be transferred to supply the malice necessary to characterize the death a murder.
Ford v. State, 99 Nev. 209, 215, 660 P.2d 992, 995 (1983). Instruction number 11 was patterned after the
felony-murder instruction approved of in Ford. See id. at 214, 660 P.2d at 995.
Nevada defines by statute three kinds of first-degree murder.
9

Murder of the first degree is murder which is:
(a) Perpetrated by means of poison, lying in wait, torture or child abuse, or by any other kind of
willful, deliberate and premeditated killing;
(b) Committed in the perpetration or attempted perpetration of sexual assault, kidnaping, arson,
robbery, burglary, invasion of the home, sexual abuse of a child or sexual molestation of a child under the
age of 14 years; or
(c) Committed to avoid or prevent the lawful arrest of any person by a peace officer or to effect the
escape of any person from legal custody.
NRS 200.030(1).
The issue presented in this case is: for first-degree murder under subsection (1)(a) of NRS 200.030, can
malice be established simply by proving that the killing was done by an enumerated means? The State answers
this question affirmatively, offering three or four arguments in support of its position. We conclude that none has
merit.
Malice versus willfulness, deliberation, and premeditation
First, the State asserts that: (1) the means enumerated in NRS 200.030(1)(a) constitute willfulness,
deliberation, and premeditation as a matter of law, and (2) willfulness, deliberation, and premeditation
subsume malice aforethought as a matter of law. Thus, the State contends, the child abuse in this case
established willfulness, deliberation, and premeditation which in turn established malice. We reject both prongs
of the state's argument.
The means enumerated in subsection (1)(a) do not necessarily constitute willfulness, deliberation, and
premeditation, though there is authority for construing the statute in this manner. See Graham v. State,
116 Nev. 23, 992 P.2d 255 {2000).
__________

9
The legislature recently added a fourth kind, involving school-related killings. See 1999 Nev. Stat., ch. 319,
3, at 1335.
........................................
Graham v. State, 116 Nev. 23, 992 P.2d 255 (2000). The original enumerated means are poison, lying in wait,
and torture, whereas child abuse was added to subsection (1)(a) only recently.
10
Although the three traditional
enumerated means are normally consistent with deliberate, premeditated action, cf. LaFave & Scott, Criminal
Law 7.1, at 605, child abuse can be and often is a rash, impulsive crime. It is unnecessary to analyze murder by
means of child abuse in terms of deliberation and premeditation because the soundest view is simply that a
murder perpetrated by an enumerated means is first-degree murder by force of statute, without legal concern
with or factual inquiry into willfulness, deliberation, and premeditation. See Graham, 116 Nev. at 28-29, 992
P.2d at 257-58; State v. Johnson, 344 S.E.2d 775, 781 (N.C. 1986); People v. Thomas, 261 P.2d 1, 3 (Cal.
1953).
[Headnotes 30, 31]
The second prong of the state's argument contains a more pronounced flaw because malice is not subsumed
by willfulness, deliberation, and premeditation. This court has so stated, but without much explanation. See, e.g.,
Hern v. State, 97 Nev. 529, 532, 635 P.2d 278, 280 (1981). But the proposition can be easily illustrated. For
example, it is possible for a police sniper to act willfully, deliberately, and premeditatedly but without malice in
fatally shooting a man who has taken hostages and threatens their lives. The legal defense of defense of self or
others justifies a homicide and negates the element of malice. [E]ven a deliberate killing, if done in actual
self-defense, is justifiable; the intent is not unlawfully to take the life of another. Kelso v. State, 95 Nev. 37, 42,
588 P.2d 1035, 1039 (1979); see also State v. Vaughan, 22 Nev. 285, 299-302, 39 P. 733, 735-36 (1895).
Malice versus specific intent to kill
[Headnote 32]
As a second argument, the State repeatedly invokes and cites authority for the proposition that specific
intent to kill is not a necessary element of murder. This proposition, however, does not address this court's
concern with jury instruction number 11. The instruction stated that murder committed by means of child
abuse is a kind of murder which carries with it conclusive evidence of malice aforethought."
__________

10
Though Nevada's code now appears to be in the minority, for many years statutes commonly deemed
poison, lying in wait, and torture to be predicates of first-degree murder. See LaFave & Scott, Criminal Law
7.1(a), at 605, and 7.7(c), at 646; Model Penal Code 210.2 cmt. 2 at 16. By contrast, child abuse was added
to NRS 200.030(1)(a) just ten years ago. See 1989 Nev. Stat., ch. 408, 1, at 865.
The most recent legislative session resulted in the removal of child abuse from subsection (1)(a) and its
placement in (1)(b), the felony murder subsection. See 1999 Nev. Stat., ch. 319, 3, at 1335.
........................................
dence of malice aforethought. (Emphasis added.) Specific intent to kill is not synonymous with malice. The
fact that not every murder requires a specific intent to kill does not relieve the State of the burden to prove some
kind of malice to establish murder.
11

As the West Virginia Supreme Court of Appeals explained, the language murder by poison, lying in wait,
imprisonment, starving' does not require that premeditation or a specific intent to kill has to be shown, but to
elevate the homicide to first-degree murder, a killing with malice must be proved and one of the four enumerated
acts must be established. State v. Harper, 365 S.E.2d 69, 72 (W. Va. 1987); see also People v. Benjamin, 124
Cal. Rptr. 799, 813 (Ct. App. 1975).
First-degree murder by an enumerated means versus first-degree felony murder
The State analogizes murder under NRS 200.030(1)(a) to felony murder under subsection (1)(b). In the
latter case, by law the malice required for murder is supplied by the intent to commit an enumerated felony.
Likewise, the State argues, the requisite malice arises as a matter of law from the use of an enumerated means
under subsection (1)(a). However, this and other courts have never followed the view urged by the State (we
discuss exceptional cases treating murder by torture below).
The California Supreme Court explained this matter clearly in People v. Mattison, 481 P.2d 193, 196 (Cal.
1971).
Thus if a killing is murder within the meaning of sections 187 [defining murder as an unlawful killing
with malice aforethought] and 188 [defining express and implied malice], and is by one of the means
enumerated in section 189 [i.e., poison, lying in wait, or torture], the use of such means makes the
killing first degree murder as a matter of law. It must be emphasized, however, that a killing by one of
the means enumerated in the statute is not murder of the first degree unless it is first established that it is
murder. If the killing was not murder, it cannot be first degree murder, and a killing cannot become
murder in the absence of malice aforethought. Without a showing of malice, it is immaterial that the
killing was perpetrated by one of the means enumerated in the statute.
It is true that murder may be committed without express malice, i.e., without a specific intent
to take human life.
__________

11
The State also invokes the legislative history of the bill which added child abuse to the enumerated means
in NRS 200.030(1)(a), emphasizing that legislators intended to make murder by child abuse murder of the first
degree. However, this legislative intent is not in dispute and has no bearing on the question in this case: did the
jury instruction improperly dispense with the state's burden to prove malice?
........................................
malice, i.e., without a specific intent to take human life. To be so committed, however, unless the
felony-murder rule is applicable, the defendant must intend to commit acts that are likely to cause death
and that show a conscious disregard for human life. [Thomas, 261 P.2d at 7 (Traynor, J., concurring).] .
. .
The above rules apply to all murders, other than felony murders, regardless of whether they are
committed by one of the means enumerated in section 189.
See also Harper, 365 S.E.2d at 72 (quoted above); Benjamin, 124 Cal. Rptr. at 813 (cited above); cf. State v.
Johnson, 821 P.2d 1150, 1156-57 (Utah 1991) (first-degree murder first requires proof of what would otherwise
be second-degree murder and then proof of an enumerated aggravating factor, e.g., administering poison).
This court's case law is in accord with Mattison. That malice is required to find murder by an enumerated
means was implicit to this court's reasoning in Pinana v. State, 76 Nev. 274, 286, 352 P.2d 824, 831 (1960). In
that case, the court upheld the giving of a jury instruction which stated: All murder which is perpetrated by
means of lying in wait is murder of the first degree. Id.
Appellant contends that this instruction was defective because the court failed to explain that murder
must first be established before the question of lying in wait can arise. In the other instructions given the
court defined murder and stated that to find appellant guilty thereof all of the elements must have been
proven beyond a reasonable doubt. . . . [T]his instruction was proper to aid the jury in determining the
degree of the offense in the event they found the appellant guilty of murder.
Id. (emphasis added). The court accepted the appellant's premise that murder must first be established before
the question of lying in wait can arise. In Moser v. State, 91 Nev. 809, 812 & n.3, 544 P.2d 424, 426 & n.3
(1975), the appellant challenged an instruction which read, The unlawful killing of a human being, with malice
aforethought, with express or implied intent, which is committed by a person lying in wait for his victim, is
Murder in the First Degree. (Emphasis added.) This court held that the instruction was properly given and
quoted People v. Atchley, 346 P.2d 764, 772 (Cal. 1959), for the proposition that the elements constituting lying
in wait are watching, waiting, and concealment from the person killed with the intention of inflicting bodily
injury upon such person or of killing such person.'
12
Id. at 813, 346 P.2d at 426 {emphasis added).
__________

12
On the required intent regarding bodily injury, see note 13 below.
........................................
346 P.2d at 426 (emphasis added). Again, there was no question that malice was a required element to prove
murder by an enumerated means.
The state's position is not only contrary to the law regarding murder by enumerated means, but seeks to
expand the doctrine of felony murder when the weight of authority calls for restricting it. Many commentators
criticize the felony-murder doctrine, and the trend has been to limit its applicability, not extend it. See Model
Penal Code 210.2 cmt. 6 at 29-42; LaFave & Scott, Criminal Law 7.5, at 622-23, 632, 640-41.
Furthermore, first-degree murder by an enumerated means fundamentally differs from felony murder.
Although child abuse, as discussed below, is a special case, the means originally enumerated in subsection
(1)(a)use of poison, lying in wait, and torturedo not denote crimes. Thus, it cannot be presumed that they
necessarily carry a felonious intent which can supply the malice necessary to characterize a killing as a murder.
For example, friends and family who spring a surprise birthday party on a middle-aged man as he steps into his
home may be lying in wait, but they are not liable for murder if he collapses and dies from a heart attack
because they did not act with malice. As noted, lying in wait is defined as watching, waiting, and concealment
from the person killed with the intention of killing or inflicting bodily injury upon that person.
13
See Moser, 91
Nev. at 812 & n.3, 544 P.2d at 426 & n.3. In effect, this definition places the requisite malice within the element
of lying in wait.
Of course, a prosecutor would not charge murder in the case of a surprise party, but even wrongful acts
involving an enumerated means and causing death may not constitute murder. For example, if a nurse carelessly
administers a lethal dose of the wrong medicine to a hospital patient, he has killed someone by means of poison.
But the nurse is liable for murder only if he acted with extreme recklessness regarding the risk to human life, an
abandoned and malignant heart. See Mattison, 481 P.2d at 197 (holding that absent a specific intent by the
defendant to kill, to find murder by means of poison, the jury had to find beyond a reasonable doubt that
the defendant "had full knowledge that his conduct endangered the life of decedent,
__________

13
Moser and Leonard v. State, 114 Nev. 639, 655-56, 958 P.2d 1220, 1232 (1998), cert. denied, 525 U.S.
1154 (1999), actually understate the required intent regarding bodily injury and are hereby clarified. To
constitute malice for murder, the standard is intent to inflict serious (or grievous or great) bodily injury.
See LaFave & Scott, Criminal Law 7.3, at 617; cf. Thomas, 261 P.2d at 7 ([T]he defendant must intend to
commit acts that are likely to cause death and that show a conscious disregard for human life.) (Traynor, J.,
concurring). Nevada's statutory code does not expressly include this form of malice aforethought, but intent to
do serious bodily injury constitutes implied malice, an abandoned and malignant heart, if it is sufficiently
reckless. See LaFave & Scott, Criminal Law 7.3, at 616-17; Model Penal Code 210.2 cmt. 5 at 28.
........................................
sonable doubt that the defendant had full knowledge that his conduct endangered the life of decedent, but that
he nevertheless deliberately administered the poison with conscious disregard for that life).
Murder by torture warrants further discussion because the State has cited authority for the proposition that
the malice required for murder can be transferred from the commission of torture. This is the only authority that
supports the state's position, and it provides support only if it can be extended to apply to murder by other
enumerated means. However, it appears that no court has taken this approach with poison, lying in wait, or any
other enumerated means. More important, we conclude that the approach is not sound even in regard to torture.
The Supreme Court of North Carolina reasoned that murder by torture is analogous to felony murder in that
malice may be implied by the very act of torturing the victim. Torture is a dangerous activity of such reckless
disregard for human life that, like felony murder, malice is implied by the law. State v. Crawford, 406 S.E.2d
579, 587-88 (N.C. 1991). The California Supreme Court also held: When a killing is perpetrated by means of
torture, the means used is conclusive evidence of malice and premeditation, and the crime is murder of the first
degree. People v. Turville, 335 P.2d 678, 685 (Cal. 1959), overruled on other grounds by People v. Morse, 388
P.2d 33, 44 (Cal. 1964).
Although as a practical matter malice may almost always be factually present when there is a killing by
torture, the decisions in Crawford and Turville err in abandoning the established analysis of first-degree murder
by enumerated means and concluding that, given torture, malice must be present as a matter of law. Such an
approach introduces laxness and inconsistency into the application of a statute which defines first-degree murder
by enumerated means in a uniform, reliable way. This lax approach is not sound because it is conceivable that
torture, like other enumerated means, can be done without legal malice.
14

Actually, although Turville has not been expressly overruled on this point, the California Supreme Court has
since reiterated that to prove murder by torture, [i]t must be established that the defendant intended to cause
cruel suffering on the part of the object of the attack, either for the purpose of revenge, extortion, persuasion, or
to satisfy some other untoward propensity.' Mattison, 481 P.2d at 197 (quoting People v. Tubby, 207 P.2d 51,
54 (Cal. 1949)). The required untoward propensity goes to the element of malice.
__________

14
For example, a man discovers that the kidnapper of his infant daughter has placed her in a safe. The baby
will soon suffocate, but the kidnapper refuses to open the safe or divulge the combination. Desperate, the man
tries to torture the kidnapper into revealing the combination but does not intend to kill him. If the kidnapper dies,
the man is not guilty of murder.
........................................
element of malice. The California Supreme Court has also explained that murder by torture is first-degree
murder not because of the amount of pain inflicted but because of the state of mind of the torturerthe
cold-blooded intent to inflict pain for personal gain or satisfaction. People v. Steger, 546 P.2d 665, 669 (Cal.
1976). Therefore, the court has held that first-degree murder by torture is murder committed with a wilful,
deliberate, and premeditated intent to inflict extreme and prolonged pain. Id.; see also People v. Wiley, 554
P.2d 881, 887 (Cal. 1976). Further, in cases of murder by torture in California, the current standard jury
instructions require the jury to find both malice aforethought and that [t]he perpetrator committed the murder
with a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain upon a living human
being for the purpose of revenge, extortion, persuasion or for any sadistic purpose. California Jury Instructions,
Criminal 8.24 and accompanying use note (6th ed. 1996). Thus, despite the unqualified statement made in
Turville, malicious intent must be independently proved to establish murder by torture in California.
As already discussed, child abuse was added only recently to the means enumerated in NRS 200.030(1)(a)
and is somewhat anomalous, but the State has not argued nor would we agree that this is a basis to treat it
differently from the other enumerated means. To maintain coherency and rigor in the application of the statute,
first-degree murder by child abuse can and must be proven in the same manner as the other three enumerated
means. To reiterate, poison, lying in wait, and torture are not separate statutory offenses, but all are consistent
with deliberate, premeditated action. Child abuse, on the other hand, can denote a crime, but does not appear to
do so in NRS 200.030(1)(a) because the statute provides its own definition of child abuse in subsection (6)(a)
rather than referencing the independent offenses involving abuse or neglect of children proscribed in NRS
200.508. Child abuse more clearly diverges from the other three enumerated means in that it does not strongly
correlate with deliberate, premeditated action since it can be and often is committed in a rash, impulsive manner.
Therefore, it is critical that jurors expressly find malice aforethought before convicting a child abuser of
first-degree murder under subsection (1)(a). Otherwise, a single rash, impulsive act by an otherwise decent
parent leading to a child's deathan act which was abusive to the child but lacked legal malicewould
constitute first-degree murder.
15

[Headnote 33]
Thus, unlike felony murder pursuant to NRS 200.030(1)(b), to
__________

15
Whether such a scenario would properly establish a predicate felony for first-degree murder under current
NRS 200.030(1)(b) is not at issue here.
........................................
establish that a killing is murder under subsection (1)(a), the State must prove that the killer acted with malice
aforethought, i.e., with the deliberate intention unlawfully to take life or with an abandoned and malignant heart.
See NRS 200.020. Proof of an enumerated means then establishes that the murder is of the first degree.
[Headnote 34]
The jury instruction in this case improperly relieved the State of this requirement. For Collman's actions to
constitute murder, the jury had to find that he acted with malice aforethought. This malice could not be
presumed simply from his commission of child abuse pursuant to NRS 200.030(6)(a), i.e., physical injury of a
nonaccidental nature to a child.
Harmless-error analysis
We conclude that the giving of instruction number 11 was harmless error beyond a reasonable doubt.
Collman contends that the erroneous instruction concerning malice is not subject to harmless-error analysis
under Thompson v. State, 108 Nev. 749, 838 P.2d 452 (1992). Therefore, Collman asserts, automatic reversal is
required. We disagree.
We take this opportunity to clarify the issue of whether erroneous instructions omitting, misdescribing, or
presuming an element of an offense are subject to a harmless-error analysis in light of Neder v. United States,
527 U.S. 1 (1999). In Neder, a case involving an erroneous instruction omitting an element of an offense from
the jury's consideration, the United States Supreme Court concluded that such instructions are reviewable
according to a harmless-error analysis. Id. at 13-15.
Traditionally, this court has held that violations of NRS 47.230 will not be deemed harmless where the
erroneous instruction concerns an essential element of the offense charged. Hollis v. State, 96 Nev. 207, 209,
606 P.2d 534, 536 (1980). In Thompson, 108 Nev. at 755-56, 838 P.2d at 456-57, this court created exceptions
to the traditional rule. Thompson concluded that an instruction establishing an improper mandatory presumption
concerning an element of a crime is subject to a harmless-error analysis in rare situations such as: (1) where
the defendant is acquitted of the offense on which the jury was improperly instructed; (2) where the defendant
admitted the element on which the jury was improperly instructed; and (3) where no rational jury could find the
predicate facts beyond a reasonable doubt without also finding the ultimate presumed fact. Id. at 756, 838 P.2d
at 456-57.
In Neder, however, the Court recently rejected the view that only in these three "rare situations"
can a jury instruction that omits, misdescribes, or erroneously asserts a conclusive
presumption concerning an element of an offense be subject to a harmless-error analysis.
........................................
only in these three rare situations can a jury instruction that omits, misdescribes, or erroneously asserts a
conclusive presumption concerning an element of an offense be subject to a harmless-error analysis. Neder, 527
U.S. at 13-15. Neder concluded that such errors are subject to a harmless-error analysis if they do not involve the
type of jury-instruction error which vitiates all the jury's findings and produces consequences that are
necessarily unquantifiable and indeterminate. Id. at 10-11 (citing Sullivan v. Louisiana, 508 U.S. 275, 281-82
(1993)).
Notably, the Court also stated:
We have often applied harmless-error analysis to cases involving improper instructions on a single
element of the offense. See, e.g., Yates v. Evatt, 500 U.S. 391 (1991) (mandatory rebuttable
presumption); Carella v. California, 491 U.S. 263 (1989) (per curiam) (mandatory conclusive
presumption); Pope v. Illinois, 481 U.S. 497 (1987) (misstatement of element); Rose [v. Clark, 478 U.S.
570 (1986)] (mandatory rebuttable presumption). In other cases, we have recognized that improperly
omitting an element from the jury can easily be analogized to improperly instructing the jury on an
element of the offense, an error which is subject to harmless-error analysis. Johnson [v. United States,
520 U.S. 461, 469] (citations omitted) . . . .
Neder, 527 U.S. at 9-10.
Two of the cases cited above in Neder provide particularly strong support for our conclusion that the
erroneous instruction in this case is subject to harmless error analysis: Yates v. Evatt, 500 U.S. 391 (1991), and
Rose v. Clark, 478 U.S. 570 (1986). As in the instant case, both Yates and Rose involved murder trials where
erroneous instructions were given concerning presumptions applicable to the element of malice.
In Rose, for example, the jury was instructed that proof establishing beyond a reasonable doubt that a killing
occurred created a rebuttable presumption that the killing was done maliciously. Rose, 478 U.S. at 574. The
Court ruled that the error at issue herean instruction that impermissibly shifted the burden of proof on
maliceis not so basic to a fair trial' that it can never be harmless. Id. at 580 (citing Chapman v. California,
386 U.S. 18, 23 (1967)). See also Clark v. Rose, 822 F.2d 596 (6th Cir. 1987) (on remand from Supreme Court,
the court of appeals applied harmless error analysis and concluded that the improper malice instruction was
harmless).
Subsequently, in Yates, a murder case involving improper mandatory rebuttable presumption instructions on
the element of malice, the Court set forth a two-step analysis for determining whether such instructions
are harmless error.
........................................
whether such instructions are harmless error.
16
The Court explained first that [i]f . . . the fact presumed is
necessary to support the verdict, a reviewing court must ask what evidence the jury considered as tending to
prove or disprove that fact. Yates, 500 U.S. at 404. At issue is whether the jury looked only at the predicate
facts or whether it considered other evidence bearing on the fact subject to the presumption. The court should
also apply the customary presumption that jurors follow instructions and, specifically, that they consider
relevant evidence on a point in issue when they are told that they may do so. Id.
Second, Yates explained, the court reviewing for harmless error must weigh the probative force of that
evidence as against the probative force of the presumption standing alone. Id. The issue is whether the jury
actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently
of the presumption. Id. If the force of the evidence presumably considered is so overwhelming as to leave it
beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of
the presumption[,] then the reviewing court can conclude that the erroneous instruction did not contribute to the
verdict rendered. Id. at 405.
[Headnotes 35-37]
Accordingly, based on the Supreme Court's decisions in Neder, Yates, and Rose, we hold that where, as here,
a jury-instruction error is not structural in form and effect, this court will henceforth review for harmless error
improper instructions omitting, misdescribing, or presuming an element of an offense. To the extent that
Thompson v. State, 108 Nev. 749, 838 P.2d 452 (1992) is inconsistent with this holding, Thompson is hereby
overruled. Under the holdings discussed above, the error at issue in this case is clearly subject to harmless error
analysis. Having so concluded, we now turn to an analysis of whether instruction number 11 was in fact harmless
beyond a reasonable doubt.
[Headnote 38]
Harmless-error inquiry requires us to ask and answer: Is it clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the error?"
__________

16
We recognize that language in Yates relating to the standard of review for jury instructions was
subsequently disapproved in Estelle v. McGuire, 502 U.S. 62, 72-73 n.4 (1991). Estelle acknowledged that Yates
could be read as endorsing a standard of review that was different from the standard articulated in Boyde v.
California, 494 U.S. 370, 380 (1990). The Court reaffirmed that the Boyde standard remains the proper
formulation, i.e., whether there is a reasonable likelihood that the jury has applied the challenged instruction in a
way that violates the Constitution. Yates otherwise remains valid precedent, and the language in Yates that was
disapproved in Estelle is not implicated in our conclusion that the instruction at issue here is subject to harmless
error analysis.
........................................
found the defendant guilty absent the error? Neder, 527 U.S. at 18. If the reviewing court cannot reach this
conclusionfor example, where the defendant contested the omitted element and raised evidence sufficient to
support a contrary findingit should not find the error harmless. Id. at 19.
We are convinced beyond a reasonable doubt that the erroneous instruction here did not induce the jury to
find Collman guilty of murder without a finding of malice. It is clear that the jury believed that Collman acted
with malice and thus would have found him guilty of murder even absent the erroneous instruction.
First, the jury was given proper guidance by the other instructions it received. Instruction number 7 correctly
informed the jury that murder is the unlawful killing of a human being, with malice aforethought, whether
express or implied.
Pursuant to NRS 200.020, instruction number 10 correctly defined express malice as a deliberate intention
unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of
proof. Instruction number 10 also correctly stated that [m]alice shall be implied when no considerable
provocation appears, or when all the circumstances of the killing show an abandoned and malignant heart.
In addition, instruction number 12 provided:
In order to prove the crime of First Degree Murder By Child Abuse, the State must prove each of the
following elements beyond a reasonable doubt:
1. [t]hat at the time and place indicated in the Information, the Defendant did willfully, feloniously and
without authority of law
2. [k]ill a human being
3. with malice aforethought
4. by means of child abuse.
Pursuant to these instructions, it is reasonable to expect that the jury considered all of the evidence of express
and implied malice revealed by our review of the entire record. In our view, that evidence is so overwhelming
as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in
the absence of the presumption. Yates, 500 U.S. at 405.
Moreover, although at least one juror found as a mitigating circumstance in the penalty phase that Collman
lacked the intent to kill, the jury was properly informed that malice could be implied when no considerable
provocation appeared or all the circumstances of the killing showed an abandoned and malignant heart.
........................................
Thus, the jury did not need to find that Collman specifically intended to kill Damian in order to find implied
malice.
Second, during the penalty phase of the trial, the jury unanimously found as an aggravating circumstance that
the killing of Damian involved torture. The district court instructed the jury that:
In order to find the aggravating circumstance of torture, the State must prove each of the following
elements beyond a reasonable doubt:
(1) The defendant committed the act or acts with the intent to inflict cruel pain and suffering upon a
living human being for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.
(2) The defendant did inflict cruel physical pain and suffering upon a living human being no matter
how long its duration.
Torture must be beyond the act of killing.
The record reveals that the jury's finding of torture was based upon the evidence adduced during the guilt
phase of the trial, as no new evidence on this point was offered during the penalty phase. Thus, the guilt phase
evidence proved to the jury beyond a reasonable doubt that Collman intentionally inflicted cruel pain and
suffering on Damian for the purpose of revenge, extortion, persuasion, or for any sadistic purpose. As
explained above, if sufficiently reckless of human life, this state of mind constitutes implied malice. Third, the
evidence established such recklessness here. Collman's ongoing and viciously abusive behavior toward Damian
and the manner of Damian's death provided sufficient evidence to support a finding of both implied malice and
torture.
We are convinced that the jury's unanimous finding that the killing of Damian involved torture established
that the jury found that Collman killed the three-year-old victim with malice. Pursuant to the other proper
instructions on malice that were provided to the jury, we are also convinced that the jury considered all the
relevant and overwhelming evidence of malice presented at trial. We conclude beyond a reasonable doubt that
the verdict resting on that evidence would have been the same in the absence of instruction number 11 and that
therefore, the erroneous instruction concerning malice was harmless beyond a reasonable doubt.
XII. Evidence about the victim's mother in the penalty phase
[Headnote 39]
At the penalty hearing, Collman moved to admit all the evidence the district court had excluded from the
guilt phase regarding Stach: specifically, her alleged interest in the occult, her prior abortion, and her alleged
lack of remorse over Damian's death.
........................................
Collman intended to refute the state's torture allegation by establishing that Stach had been the one who tortured
Damian the last few months of his life and it was just fortuitous that [Collman] was the individual [who]
inflicted the final abuse. The court denied the motion because the evidence was dubious, tenuous, and irrelevant
to the penalty phase.
Collman contends that the district court denied him his unfettered right to present mitigating evidence.
NRS 175.552(3) provides in part: In the [penalty] hearing, evidence may be presented concerning aggravating
and mitigating circumstances relative to the offense, defendant or victim and on any other matter which the
court deems relevant to sentence . . . . (Emphasis added.) The United States Supreme Court has also announced
that the trier of fact in a penalty phase of a capital case must consider evidence about the defendant and his
offense; the Court does not require considering evidence about a prosecution witness. See Woodson v. North
Carolina, 428 U.S. 280, 304 (1976).
[Headnotes 40, 41]
No case law or statute requires admission of witness character evidence in a penalty hearing. The hearing in
the instant matter was about Collman, Damian, and Collman's crime, not about Stach. [Q]uestions concerning
the admissibility of evidence during the penalty phase of a capital murder trial are generally left to the trial
judge's discretion. Emil v. State, 105 Nev. 858, 864, 784 P.2d 956, 960 (1989). The district court here correctly
concluded that the evidence was irrelevant to the penalty phase proceedings. That Stach allegedly had an interest
in the occult, had an abortion, and allegedly lacked remorse remained irrelevant to the offense for which
Collman was convicted. Accordingly, we conclude that the district court did not abuse its discretion by denying
Collman's motion to admit this evidence.
XIII. Statutory review of the death sentence in this case
[Headnote 42]
Collman contends that the death sentence is not appropriate in this case. He reiterates the mitigating
circumstances found by the jurors and claims that the death penalty resulted from emotion and passion.
Pursuant to NRS 177.055(2), we have reviewed Collman's death sentence and conclude that the evidence
supports the aggravating circumstances, that the sentence was not imposed under the influence of passion,
prejudice, or any arbitrary factor, and that the sentence is not excessive, considering both Collman and his
crime.
At the penalty phase, the State reasserted the evidence presented at the guilt phase and introduced other
evidence of Collman's violent temper and previous instances of abuse. The jury found the existence of
two aggravating circumstances, torture and victim under fourteen years old.
........................................
jury found the existence of two aggravating circumstances, torture and victim under fourteen years old. See NRS
200.033(8), (10). The jury found six mitigating circumstances: no significant criminal history, job history,
cooperation with law enforcement, lighter sentence for Stach, lack of intent to kill, and no flight of any kind.
After determining that the mitigating circumstances did not outweigh the aggravating circumstances, the jury
sentenced Collman to death.
We conclude that the evidence supported both the aggravator of torture, as discussed earlier in this opinion,
and the aggravator of victim under fourteen. There is no indication that the death sentence was imposed under
the influence of passion, prejudice, or any arbitrary factor. Nor is the sentence excessive, considering Collman
and his crime. In addition to the details of Collman's mistreatment and murder of Damian, the jury heard
evidence that Collman had a long history of severely mistreating women and children and derived pleasure from
their fear and pain. Angela Collman, Collman's former wife, described in detail how Collman abused, controlled,
raped, and threatened her throughout their marriage. She further testified that while she was pregnant with their
daughter, Kendra, Collman put a gun to her stomach because she refused to have an abortion. Angela testified
that Collman was rough with Kendra and once dropped her into her bassinet from a height of two feet. Angela
also related an incident where she was driving sixty to seventy miles per hour and Collman held Kendra out the
car window, threatening to drop her if Angela stopped the car or slowed down. Naomi Wade, Collman's former
girlfriend, also testified to the abuse she endured from Collman. Collman liked to see her cry and would choke,
hit, and punch her, slam her against the wall, and spit on her.
[Headnote 43]
Finally, although a lack of intent to kill was found as one mitigator, this does not prohibit imposition of the
death penalty. Collman did not raise this issue on appeal, but it is clear that the death penalty is not prohibited
here even if Collman did not specifically intend to kill Damian. The United States Supreme Court has held that
reckless disregard for human life may be sufficient to warrant a death sentence even when a defendant has no
specific intent to kill. See generally Tison v. Arizona, 481 U.S. 137, 146-58 (1987).
CONCLUSION
Although instruction number 11 erroneously instructed the jury on the requirement of malice aforethought,
we conclude that the error was harmless.
........................................
error was harmless. We therefore affirm Collman's conviction and death sentence.
Young, Shearing, Leavitt and Becker, JJ., concur.
I agree that defects in jury instructions defining the elements of a charged crime may be the subject of a
harmless error analysis under Neder. However, our embrace of the United States Supreme Court decision in
Neder does not involve a mere clarification of our prior decision in Thompson v. State, 108 Nev. 749, 838 P.2d
452 (1992). Rather, our decision today comprehensively expands the basic proposition of law articulated in that
opinion.
The majority is careful to observe that it is critical for juries to be instructed on the need to prove malice,
express or implied, before convicting a defendant of murder under NRS 200.030(1)(a). See Graham v. State, 116
Nev. 23, 992 P.2d 255 (2000). This underscores the care that should be exercised in the application of Neder to
these matters. Here, the majority's conclusion that the defects in the instruction constitute harmless error did not
subject Collman to criminal liability for murder based upon a single rash, impulsive act by an otherwise decent
parent. Overwhelming evidence demonstrated that Collman serially and maliciously abused a small and
defenseless toddler. On these facts, the jury could not have been misled by the instruction regarding the element
of malice.
I would also separately comment on the marginal nature of Collman's alternative defense, to wit: that
Damian's mother was the perpetrator. First, the need to take the child to the hospital occurred while Collman was
alone with the child. Second, substantial circumstantial evidence confirms that the final physical insult to this
child did not occur at any other time or by means other than by child abuse. Thus, the trial court's refusal to
admit extraneous evidence regarding the mother's conduct before and after Damian Stach's demise does not
dictate reversal of Collman's conviction.
While resort to a harmless error analysis in these cases should be the exception rather than the rule, I agree
with the majority that the error in this case was harmless beyond a reasonable doubt.
Rose, C. J., dissenting:
I concur in the majority's cogent analysis that it was error to give instruction #11, which states that malice
aforethought, an essential element of the crime of murder, is conclusively established when death by child abuse
has been proven. However, I disagree with the majority that we should discard our
long-established precedent that prohibits harmless error analysis from being used to
excuse jury instructions that fail to include all the essential elements of the crime.
........................................
disagree with the majority that we should discard our long-established precedent that prohibits harmless error
analysis from being used to excuse jury instructions that fail to include all the essential elements of the crime.
Instead, I would prefer to stay with the time-honored rule that such errors are so fundamental to due process and
fairness that they cannot be considered harmless. For this reason and the fact that I conclude that admissible
evidence was improperly excluded, I would reverse this case and remand for a new trial.
This court has held that there are a few types of error that are so fundamental to our concept of justice that
harmless error analysis is inapplicable. See Thompson v. State, 108 Nev. 749, 838 P.2d 452 (1992). A jury
instruction that incorrectly states the elements of the charged crime is one of them.
In Thompson, we held that where the jury instructions fail to correctly state all of the elements of the crime,
we will permit harmless error analysis only in certain limited circumstances. These circumstances are: (1) where
the defendant is acquitted of the offense on which the jury was improperly instructed; (2) where the defendant
admitted the element on which the jury was improperly instructed; and (3) where no rational jury, having already
found the predicate facts beyond a reasonable doubt, could find those facts without also finding the ultimate
presumed fact. See id. at 756, 838 P.2d at 456-57.
As none of these circumstances is present here, the inclusion of a jury instruction that omits an essential
element of the crime is not harmless, and thus warrants reversal. The majority, however, alters the harmless error
jurisprudence of this state by relying on Neder v. United States, 119 S. Ct. 1827 (1999), a recent United States
Supreme Court decision in a federal property crime case.
In Neder, the United States Supreme Court held that a trial court's failure to include all the essential elements
of the crime in the jury instruction is subject to harmless error analysis. This holding, however, is in no way
binding upon us, and the dissent, written by Justice Anton Scalia, persuasively articulates why adopting this new
rule is erroneous and invades the province of the jury.
In accord with the dissent in Neder, I believe that the right to be tried by a jury, a guarantee that is central to
the Constitution, includes the right to have the jury determine the guilt or innocence of a defendanta
determination that necessarily requires proof of all elements of a crime. Thus, the right to render the verdict in
criminal prosecutions belongs exclusively to the jury; reviewing it belongs to the appellate court. Neder v.
United States, 119 S. Ct. 1827, 1848 (1999) (Scalia, J., dissenting).
The majority of this court, however, applies the harmless error analysis and asks whether it is
"clear beyond a reasonable doubt that a rational jury would have found the defendant
guilty" absent the erroneous instruction.
........................................
analysis and asks whether it is clear beyond a reasonable doubt that a rational jury would have found the
defendant guilty absent the erroneous instruction. Thus, the majority essentially steps into the shoes of the jury
and fills in gaps necessary to the verdict. While I believe that harmless error analysis may properly be used to
review a verdict under the circumstances outlined in Thompson, such analysis only applies when the jury
actually renders a verdict that is, when the jury has considered all the elements of the crime and found the
defendant guilty.
Although I disagree with the majority's general conclusion that harmless error review applies to instructions
which omit, misdescribe, or presume an element of an offense, I also have concerns with the majority's
application of harmless error analysis to the facts of this case. The majority concludes that the use of the
erroneous instruction, which omitted an essential element of the crime of murder, was harmless because: (1) the
jury was given one proper instruction, jury instruction #10, that defined implied malice on which the jury could
have relied; and (2) the jury's finding of torture in the penalty phase provided sufficient evidence to support a
finding of implied malice in the guilt phase. I strongly disagree with these conclusions.
First, it is mere speculation to assume that the jury relied on instruction #10 because there is no evidence in
the guilt phase so indicating. During the guilt phase, rather than convicting Collman of first-degree murder based
on a finding of implied malice, the jury could have relied on the improper mandate set forth in instruction #11,
and thus concluded that malice was established solely because the murder occurred by means of child abuse.
Because it is unclear, and particularly because it is not clear beyond a reasonable doubt, that the jury made any
finding in the guilt phase with respect to malice aforethought, I cannot say that this error was harmless.
Second, I disagree with the majority that we can bootstrap findings made in the penalty phase to cure errors
made in the guilt phase. By statute, the guilt and penalty phases of a criminal trial are separate hearings in which
different evidentiary rules apply. See NRS 175.552. Often, in the penalty phase, the jury hears evidence
concerning a defendant that was inadmissible during the guilt phaseevidence that the jury was forbidden from
considering in determining the guilt or innocence of the accused. Therefore, because the rules of evidence, the
ultimate purpose, and the overall tenor of these two proceedings are vastly different, I cannot conclude that the
jury's finding of torture in the penalty hearing equates to a finding of implied malice in the guilt phase. Further,
using penalty phase findings to cure errors in the guilt phase may result in harsher and unequal treatment for
death penalty defendants who do not have the option to waive such a hearing.
........................................
penalty defendants who do not have the option to waive such a hearing. See NRS 175.552(2) (In a case in
which the death penalty is not sought, the parties may by stipulation waive the separate penalty hearing . . . .).
Thus, I conclude that based on the erroneous jury instruction alone, reversal is warranted in this matter.
To compound matters, I believe that the trial court improperly excluded relevant, admissible evidence. One
of Collman's defenses was that Stach was the abuser and killer of Damian. This included specific evidence of
Stach slapping Damian across the face with her hand hard enough to draw blood and across the buttocks with a
spatula, beating Damian across the hands and over his body with a wooden spoon, and Stach bragging that she
gave Damian a very noticeable black eye for misbehaving. Despite Collman's defense, the State put forth great
effort to show that the bite marks that could be identified on Damian's body were inflicted by Collman. One
dental expert was called by the State to testify that the bite marks matched Collman's teeth. Collman countered
by presenting three expert witnesses who testified that the bite marks were not Collman's and that the bite mark
evidence was inconclusive. Accordingly, whether there were any bite marks, let alone who inflicted them, were
central issues at trial.
To bolster his defense that Stach inflicted the bite marks, Collman attempted to introduce evidence that Stach
was interested in vampirism and the occult. This evidence included items of vampire literature, two dots tattooed
on Stach's neck to resemble a vampire bite, and the fact that Stach had given her son a name that closely
resembled the child devil's designation in a popular movie. Collman alleged that this evidence was probative
because, in a matter where two people were accused of biting another, it was more probable that the biting was
done by someone who was involved in vampirism and the occult.
The State, however, argued against admission of this evidence alleging that it was irrelevant and that Stach
had recently rejected her vampire practices and beliefs. The district court agreed, and no evidence of Stach's
vampire proclivities was admitted into evidence. Normally we permit the district court substantial discretion in
determining what constitutes relevant evidence, but we have also held that the district court's exercise of its
discretion must not prohibit a defendant from presenting his or her full defense. See Stinnet v. State, 106 Nev.
192, 196, 789 P.2d 579, 582 (1990); Vincent v. State, 97 Nev. 169, 170, 625 P.2d 1172, 1173 (1981).
Moreover, a defendant in a death penalty case is generally afforded greater latitude in the presentation of
evidence. See U.S. v. Stevens, 935 F.2d 1380, 1404-05 (3rd Cir. 1991). With these principles in mind, I believe
that the vampire propensities of Stach should have been received into evidence,
........................................
should have been received into evidence, and that the district court erred in not permitting Collman to present
this evidence.
Further, the evidence of Stach's interest in vampirism and the occult at the time Damian was being abused
could have affected the jury's finding of torture as an aggravating factor during the penalty phase of Collman's
trial. Such evidence may well have led the jury, or certain of its members, to conclude that Stach was more likely
the one who inflicted the bite marks on Damian, especially in light of Stach's guilty plea for child neglect. Thus,
the jury may ultimately have concluded that the aggravating factor of torture could not be found beyond a
reasonable doubt. This would then leave one aggravating factor against six mitigating factors, with one of the
mitigating factors being that Collman did not intend to kill Damian.
1
Accordingly, I believe that the decision to
impose the death penalty may well have been different had Collman been permitted to present the evidence of
Stach's practice and interest in vampirism and the occult.
Finally, the district court's error in refusing to admit evidence to show Stach's vampire practices and beliefs is
compounded by the fact that the district court allowed the State to present remote, tenuous evidence of Collman's
guilt. Specifically, the district court allowed the State to enter evidence suggesting that Collman was not
remorseful over killing Damian because he propositioned Stach for sex around the time of Damian's funeral. I
see, at best, an attenuated relationship between sexual desire and lack of remorse. Moreover, my colleagues in
the majority point out the inconsistent evidentiary rulings made by the district court in that evidence of Collman's
sexual desires were deemed admissible, whereas evidence concerning Stach's sexual desiresmainly
propositioning another for sexual relationswas deemed irrelevant, prejudicial, and incredible. Throughout the
trial, it appeared that the relevancy of the State's evidence was upheld, but the converse was not true when
Collman attempted to present evidence in his own behalf.
In conclusion, I think it is a mistake to apply the harmless error rule to an error so fundamental as the correct
statement of the elements of the crime and there is no compelling reason to reverse our prior authority that
refused to overlook this type of substantial error. Further, Collman was prevented from presenting evidence that
would have had a tendency to show that Stach was the one who had inflicted the bite marks on
Damian.
__________

1
At least one and perhaps all of the jurors found that Collman did not intend to kill Damian. While the United
States Supreme Court has held that a defendant may be given the death penalty even though he or she did not
intend to kill the victim, see Tison v. Arizona, 481 U.S. 137 (1987), I believe the state courts should be reluctant
to affirm the death penalty in such a case where a substantial error was admittedly made at trial and the
defendant was prevented from presenting key evidence on an important issue.
........................................
one who had inflicted the bite marks on Damian. In reviewing death penalty cases, we are instructed by the
United States Supreme Court that we are to do so with a heightened sense of scrutiny. See, e.g., Green v.
Georgia, 442 U.S. 95 (1979); Gardner v. Florida, 430 U.S. 348 (1977); Furman v. Georgia, 408 U.S. 238
(1972). It seems to me that the majority has done just the opposite in this case. I would reverse this case and
remand it for a new trial.
____________
116 Nev. 732, 732 (2000) Hollaway v. State
ROY HOLLAWAY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32142
August 23, 2000 6 P.3d 987
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of first-degree murder and a
sentence of death. Eighth Judicial District Court, Clark County; Jeffrey D. Sobel, Judge.
Defendant was convicted in the district court of first-degree murder, and he received death sentence.
Defendant appealed. The supreme court, Shearing, J., held that: (1) trial court was not required to appoint
standby counsel for defendant during penalty phase; (2) activation of defendant's electronic stun belt, during
prosecutor's final closing argument during penalty phase, required reversal of death sentence; (3) prosecutor
improperly stated to jury that victim's family would have no more holidays with their daughter and their sister;
and (4) jurors should have been given instruction affirmatively informing them of their responsibility to
independently assess all the evidence in considering mitigation.
Conviction affirmed; sentence reversed; remanded for new penalty hearing.
Young, J., with whom Leavitt, J., joined, dissented.
Chief Deputy District Attorney, and David B. Barker, Deputy District Attorney, Clark County, for Respondent.
Trial court was not required to appoint standby counsel for defendant during penalty phase of capital murder case, where
defendant rejected court's express offer to appoint standby counsel.
........................................
Defendant could waive right to present mitigating circumstances at penalty phase of capital murder case.
Statute which requires the supreme court to consider whether the sentence of death is excessive, considering both the crime and
the defendant, does not unconstitutionally preclude the court from considering mitigating evidence when reviewing death sentence.
Provision in fact requires the supreme court to consider mitigating evidence when determining whether death sentence is excessive.
NRS 177.055(2)(d).
Because the death penalty is unique in its severity and irrevocability, the supreme court must carefully review every death sentence
to minimize the risk that the penalty is imposed in error or in an arbitrary and capricious manner. NRS 177.055(2).
Activation of defendant's electronic stun belt, during prosecutor's final closing argument during penalty phase of capital murder
case, was arbitrary and prejudicial factor which required reversal of defendant's death sentence, though court attempted to allay the
prejudice by informing jury that defendant was wearing stun belt and had done nothing to warrant its activation. Belt activated as
prosecutor was stressing to jury how violent defendant was, and activation of belt reinforced image of defendant as extremely violent
man with whom authorities had to take exceptional security precautions. NRS 177.055(2)(c).
Prosecutor's statement to jury, during closing argument in penalty phase of capital murder case, that victim's family would have no
more holidays with their daughter and their sister improperly encouraged jury to impose sentence under influence of passion. NRS
177.055(2)(c).
During penalty phase of capital murder case in which defendant elected to present no mitigating circumstances, jurors should have
been given instruction affirmatively informing them of their responsibility to independently assess all the evidence in considering
mitigation, and lack of such instruction required reversal of death sentence, where record revealed number of potential mitigating
factors, defendant told jurors not to bother with mitigating circumstances, and prosecutors also argued that no mitigating
circumstances existed.
Even where no mitigating circumstances are presented at the penalty phase of capital case, the jurors may consider any evidence
presented in the guilt phase that may indicate that a penalty less than death is appropriate.
When death penalty is sought during penalty phase, jurors must be instructed that, in determining whether mitigating
circumstances exist, they have obligation to make independent and objective analysis of all the relevant evidence, that arguments of
counsel or party do not relieve jurors of this responsibility, that jurors must consider totality of circumstances of crime and defendant,
as established by evidence presented in guilt and penalty phases of trial, and that neither the prosecution's nor defendant's insistence on
existence or nonexistence of mitigating circumstances is binding upon jurors.
........................................
A state's capital sentencing scheme must genuinely narrow the class of persons eligible for the death penalty.
Aggravating circumstances are expressly enumerated by statute, and only evidence relevant to these enumerated aggravators will
serve to establish a defendant's eligibility for the death penalty. NRS 200.030(4)(a), 200.033.
In penalty phase of capital case, a mitigating circumstance can be any circumstance relative to the offense, defendant or victim
which a juror considers mitigating. NRS 175.552(3), 200.035(7).
In penalty phase of capital case, aggravating evidence and mitigating evidence also entail relevant rebuttal evidence. A defendant
can offer evidence to rebut the State's proof of aggravating circumstances, as can the State to rebut proof of mitigating circumstances.
Under state's capital sentencing scheme, two things are necessary before a defendant is eligible for death: the jury must find
unanimously and beyond a reasonable doubt that at least one enumerated aggravating circumstance exists, and each juror must
individually consider the mitigating evidence and determine that any mitigating circumstances do not outweigh the aggravating.
Even if the jury as a whole finds aggravating circumstances and every juror determines that mitigating circumstances either do not
exist or do not outweigh the aggravating, the defendant is only death-eligible. The jury must then decide on a sentence unanimously
and still has discretion to impose a sentence less than death. NRS 175.554(2), (3), 175.556.
To be admissible in penalty phase of capital case, other matter evidence must be relevant, and its danger of unfair prejudice must
not substantially outweigh its probative value. To be relevant, like mitigating evidence, it must relate to the offense, defendant or
victim. NRS 175.552(3).
During penalty phase of capital case, State can offer other matter evidence for only one purpose: for jurors to consider in
deciding on an appropriate sentence after they have determined whether the defendant is or is not eligible for death. NRS 175.552(3).
Other matter evidence is not admissible, during penalty phase of capital case, for use by the jury in determining the existence of
aggravating circumstances or in weighing them against mitigating circumstances. NRS 175.552(3).
District courts at capital penalty hearings must ascertain purpose for which the State offers any evidence and inform the jury of the
evidence's proper use. Three purposes are proper: to prove an enumerated aggravator, to rebut specific mitigating evidence, or to aid
the jury in determining the appropriate sentence after any enumerated aggravating circumstances have been weighed against any
mitigating circumstances. NRS 175.552(3).
........................................
When the State offers evidence at capital penalty hearing for the purpose of aiding jury in determining appropriate sentence after
any enumerated aggravating circumstances have been weighed against any mitigating circumstances, the court must admonish the jury
that the evidence is not to be used in determining the existence or the weight of aggravating circumstances. NRS 175.552(3).
Once the jurors determine whether or not the defendant is death-eligible, then they must consider all the relevant evidence to
determine the appropriate sentence for the defendant.
The Eighth Amendment requires that the death penalty be imposed fairly, and with reasonable consistency, or not at all. U.S.
Const. amend. 8.
OPINION
Appellant Roy Hollaway strangled his wife, Carolyn Whiting, on January 27, 1996. The couple had
been arguing for days and drinking heavily when Hollaway strangled Whiting, first with his hands and
then with an electrical cord. Hollaway then called 911 and reported the crime. He admitted the crime to
the 911 operator and to police after they arrived. Whiting was in a coma and died about two weeks later.
The State charged Hollaway with first-degree murder and sought the death penalty. Hollaway chose to
represent himself, and at trial he offered no defense. After the jury found him guilty, he offered no
mitigating evidence and asked for and received a death sentence.
Pursuant to this court's order, the district court appointed counsel to represent Hollaway on appeal.
Counsel challenges Hollaway's death sentence on a number of grounds. We conclude that these grounds
are meritless, but pursuant to our mandatory review of the death sentence, we conclude that Hollaway's
sentence was imposed under the influence of prejudicial and arbitrary factors. We therefore vacate the
sentence and remand for a new penalty hearing.
FACTS
On March 22, 1996, the State filed an information charging Hollaway with murder. Hollaway pleaded
not guilty at his arraignment on March 26, 1996. On April 15, 1996, the State filed a notice of intent to seek
the death penalty, alleging as a single aggravating circumstance that Hollaway was convicted of
second-degree armed robbery and false imprisonment in California in 1990.
........................................
degree armed robbery and false imprisonment in California in 1990.
1

On August 13, 1996, Hollaway's counsel moved the district court for a competency hearing. In an attached
affidavit, counsel informed the court that Hollaway consistently expressed a desire to receive the death penalty
and had been severely depressed and despondent.
On October 11, 1996, several defense motions were filed. One moved to allow Hollaway to represent himself
and to allow the public defender to withdraw. Another moved to withdraw his plea of not guilty and to plead
guilty to first-degree murder. Attached was an affidavit by Hollaway, stating that he did not want a trial and
wanted to proceed directly to sentencing. Defense counsel also filed a motion to set a hearing to determine
Hollaway's competency. Attached were, among other things, evaluations of Hollaway by psychiatrist William
O'Gorman, M.D., and psychologist Lewis Etcoff, Ph.D.; a transcript of a police interview of Hollaway after his
arrest; a transcript of his call to 911; and copies of letters from Hollaway to family and friends after the crime. In
the letters, Hollaway expressed regret over killing Whiting. For example, in a letter to his mother, he told how he
and Whiting had been drinking all day and arguing, that he lost it and came completely unglued and killed
her, that there was no excuse for it, and that he would regret it the rest of his life; he also asked his mother to call
and try to comfort Whiting's mother. Hollaway also exchanged letters with Whiting's mother and expressed his
regret.
Dr. O'Gorman concluded that Hollaway was clinically depressed and should be more carefully evaluated
with an Electroencephalogram (EEG) that may show evidence of disturbance of stream of consciousness, under
the influence of alcohol. O'Gorman concluded, however, that Hollaway's depression did not render him
incompetent to stand trial. Dr. Etcoff, while recognizing Hollaway's desire to die as a part of Hollaway's clinical
depression, agreed that Hollaway was competent to stand trial.
O'Gorman and Etcoff both testified before the district court at a hearing on October 30, 1996. After their
testimony, Hollaway told the court that he preferred the death penalty to thirty to forty years in prison. In
responding, the court said that it had not prejudged the case but had seen worse murders where defendants did
not get the death penalty. It told Hollaway that he was probably wrong if he thought a three-judge panel would
automatically sentence him to death and that an average jury might be more likely to return a death sentence.
__________

1
Hollaway robbed a gas station attendant at knife point. After serving approximately 18 months in prison, he
was paroled. He had successfully completed his parole prior to strangling his wife.
........................................
On December 5, 1996, the district court found that Hollaway was not competent to understand the charges
against him and to aid in his own defense and ordered him committed to Lakes Crossing Center for a
determination of his ability to attain competency. On April 3, 1997, after reviewing the reports of a sanity
commission, the court found Hollaway competent to stand trial. At that time, Hollaway told the court that he no
longer wanted to plead guilty but preferred to go to trial.
At a hearing on April 17, 1997, the district court canvassed Hollaway regarding his motion to represent
himself. The court took the matter under consideration and strongly urged Hollaway to try antidepressant
medication in the meantime.
2
Hollaway admitted that he wished to represent himself in order to receive the
death penalty. At a hearing on May 29, 1997, the court ruled that Hollaway had a right to represent himself and
relieved the public defender as counsel. Hollaway also rejected standby counsel.
The guilt phase of the jury trial began on October 27, 1997, and ended the next day. During jury selection,
the State and Hollaway each used peremptory challenges to strike venire members who expressed hesitation
about having to judge another person or return a death sentence. During the trial, Hollaway made no objections,
asked only a handful of questions on cross-examination, presented no evidence, and made no argument.
During the guilt phase the 911 operator who took Hollaway's call on the night of January 27, 1996, testified
as follows. Hollaway called and said that his wife would not die despite his repeated efforts to strangle her over a
thirty-minute period. He said that he considered using a knife but that was too messy. He also said that he and
his wife had been fighting for about three days. When told that the conversation was being recorded, Hollaway
said, Cool. I did this deliberately because I wanted her to die. . . . [I]f that don't get me the death penalty, I
reckon nothing will. Portions of the taped call were played to the jury.
A Las Vegas Metropolitan Police Department (LVMPD) officer was dispatched to Hollaway's apartment
after the call and testified to the following. Hollaway told the officer that he had killed his wife. The officer
found Whiting lying on the apartment floor. Hollaway told the officer that he had tried to drown her, then
choked her with his hands, and then because he was not strong enough used an electrical cord. Medical
personnel arrived, tried to resuscitate Whiting, and then took her from the apartment on a gurney. Hollaway was
in the patrol car with the officer and said something to the effect that, I can't believe the bitch is still alive.'
__________

2
There is no indication that Hollaway ever did so.
........................................
A second LVMPD officer who arrived at the apartment that night testified. Hollaway also told this officer
how he had tried to drown his wife, strangle her manually, and then used an electrical cord. He said he did so
because he believed that she was cheating on him with another man. After Hollaway was put in the patrol car, he
began to beat his head on the window between the front and the back seat: He washe was going pretty
ballistic, banging his head on the window; he was pretty distraught. When Hollaway saw his wife on the gurney,
[h]e said, Don't tell me the bitch isn't dead, by god, she had better be dead.'
Whiting died two weeks after the strangling. The doctor who performed the autopsy found that she had died
from asphyxiation due to strangulation and that her brain had liquefied due to lack of blood supply.
An LVMPD detective conducted an audiotaped interview of Hollaway the night of his arrest. The detective
testified regarding the interview, but the tape was not played during the guilt phase. The detective told the jury
that Hollaway said he and Whiting had been drinking and arguing and at a point he snapped and said, Fuck it,
you gotta die.' Hollaway said that they had been arguing for several days and that Whiting had been comparing
him to her ex-husband, which he hated. He stated that he first choked her with his hands, then resorted to an
electrical cord, and stopped only when he was exhausted. When the detective asked if alcohol had impaired his
thinking, Hollaway said, No, I ain't copping that plea.'
Whiting's mother testified. During her testimony, she stated that she and Hollaway had exchanged letters
after her daughter's death and that Hollaway admitted what he did and he was sorry.
The jury found Hollaway guilty of first-degree murder. The penalty hearing was held the next day, October
29, 1997. The State first played the entire tape of the 911 call and then the tape of the interview of Hollaway by
the detective. The complete tapes contained additional statements of Hollaway demonstrating his appreciation of
the consequences of his conduct and his desire to face up to what he had done, as well as more details about the
arguments and drinking that preceded the strangulation.
(911 Tape)
Hollaway: Miss. Look, I know I'm going to prison. I have the door open. It's not locked. Police can come
in. I'm not violent.
. . . .
911 Operator: I just hope your wife's not dead.
........................................
Hollaway: Well, truth to tell, now, I kinda hope she ain't either.
(Voluntary Statement)
Hollaway: We had been arguing for several days. Although today was . . . I never actually planned on
killin' her til tonight. And then she . . . Fuck, I just had enough. Fuck it. I just killed her.
. . . .
Detective: Are you remorseful about what happened?
Hollaway: I don't know, I think I'm still in kind of in shock.
Detective: Okay. Have you been drinkin' tonight?
Hollaway: Yes, I have.
. . . .
Detective: Okay. When had you stopped drinkin' prior to the, uh, fight? How long had it been since your
last drink before the fight?
Hollaway: Well, we sit . . . we were both sittin' in the house havin' a beer.
Detective: So you were drinking up to the time
Hollaway: Right.
Detective: right to the fight.
Hollaway: Correct.
. . . .
Detective: Okay. Once again, is there anything else you'd like to add to this that I may not have asked
you? That may clear this up? Before we conclude the interview.
Hollaway: What is there to clear up? You know, there ain't nothin'.
Detective: Okay.
Hollaway: Stupid fucked up. Now I pay the price.
Joanna Stutheit, a friend of Whiting's, testified. She worked at a bar and liquor store and saw Whiting and
Hollaway daily. On two occasions, she saw Hollaway grab Whiting's throat and choke her. One time was at the
bar; Whiting was angry with Hollaway and argued with him for forty-five minutes to an hour
before he attacked her;
........................................
and argued with him for forty-five minutes to an hour before he attacked her; another man pulled Hollaway
away. Stutheit could not remember why the other incident, at the liquor store, occurred; Hollaway stopped
choking Whiting after other people told him to. Stutheit said that Whiting was sometimes verbally abusive to
Hollaway: There was times where she'd call him stupid and she'd just humiliate him.
Richard Ziemelis testified. He had lived next door to Hollaway and Whiting. About one month before the
fatal assault, Hollaway and Whiting had argued in their apartment. Ziemelis went into their apartment, found
Hollaway choking Whiting, and pulled him off of her. Another time, when Ziemelis asked Whiting about the
cracked windshield in her car, Whiting said that she had argued with Hollaway and he had slammed her head
into the windshield.
Dolores Killmer, another friend of Whiting's, testified. One time she was visiting Whiting, and Whiting and
Hollaway had been drinking. Hollaway began choking Whiting in the bedroom, and Killmer had to pull him off
of her.
The State presented evidence of Hollaway's prior conviction and rested. Hollaway presented no evidence.
In his opening statement during the penalty phase, prosecutor David Barker informed the jury that
Hollaway's blood alcohol level was .13 percent, and the lab report was entered into evidence. In closing
argument, however, the prosecutors did not mention Hollaway's intoxication and argued that no mitigating
circumstances existed.
During closing argument, prosecutor Laura Rehfeldt reminded jurors of the testimony by Whiting's mother
and the pain that Whiting's death had caused her family. Rehfeldt said: There will be no more holidays the
family spends with their daughter and their sister, Carolyn Whiting.
In his closing argument, Hollaway told the jury that he was in disciplinary lock-up. He claimed that this was
because he was a threat to other prisoners, and he implied that he might kill again. There was no evidence
presented during trial or anywhere else in the record to support Hollaway's assertion that he was in disciplinary
lock-up or that the jail considered him a threat to other inmates.
During final closing argument, as prosecutor Barker was stressing to the jury how violent Hollaway was, an
electronic stun belt that Hollaway was wearing was activated and shocked him, completely disrupting the
proceedings. The jury was excused, and the district court stated that it was intolerable that this can happen by
accident when he's doing absolutely nothing. When the jury returned, the court explained that Hollaway was
wearing a stun belt and emphasized that he had done nothing to warrant its activation. The prosecutor then
finished his argument.
........................................
The jury retired to its deliberations and returned a verdict of death. The jury found one aggravating
circumstanceHollaway had been previously convicted of a felony involving the use or threat of violenceand
no mitigating circumstances. The district court imposed the sentence of death on December 15, 1997.
The district court clerk sent this court the record on appeal, pursuant to NRS 177.055(1). Pursuant to this
court's order, the district court appointed counsel to represent Hollaway in this appeal.
DISCUSSION
I. Issues raised by way of appeal
In his briefs to this court, Hollaway
3
argues that the right to self-representation is not unqualified,
particularly in the penalty phase of a capital case, and that the district court erred in not appointing counsel to
act as a friend of the court and present mitigating evidence. He also argues that the failure to present mitigating
evidence frustrated the State's statutory capital sentencing scheme. Finally, he claims that NRS 177.055(2) is
unconstitutional.
[Headnotes 1, 2]
Hollaway cites no authority that requires a court to appoint standby counsel. He does cite authority holding
that courts have the discretion to appoint such counsel, and this court has so held. Harris v. State, 113 Nev.
799, 804, 942 P.2d 151, 155 (1997). Harris also states that a defendant who elects to represent himself does not
have a constitutional right to advisory counsel and the court has no duty to appoint such counsel. Id.
Furthermore, in this case Hollaway rejected the district court's express offer to appoint standby counsel.
Therefore, the court did not err in failing to appoint standby counsel for Hollaway. Regarding the failure to
present mitigating circumstances, this court has ruled that a capital defendant may waive the right to do so. See
Colwell v. State, 112 Nev. 807, 811, 919 P.2d 403, 406 (1996).
[Headnote 3]
Hollaway claims that NRS 177.055(2) unconstitutionally precludes this court from considering mitigating
evidence when reviewing a death sentence. This claim is meritless. NRS 177.055(2)(d) requires this court to
consider: Whether the sentence of death is excessive, considering both the crime and the defendant.
(Emphasis added.) This provision not only permits but requires this court to consider any mitigating
evidence when determining whether a death sentence is excessive.
__________

3
Hollaway's appointed counsel actually raises the issues on appeal because Hollaway himself is not actively
pursuing the appeal.
........................................
but requires this court to consider any mitigating evidence when determining whether a death sentence is
excessive.
II. Mandatory review of the death sentence: the influence of prejudicial and arbitrary factors
[Headnote 4]
NRS 177.055(2) requires this court to review every death sentence and consider in addition to any issues
raised on appeal:
(b) Whether the evidence supports the finding of an aggravating circumstance or circumstances;
We are also cognizant that because the death penalty is unique in its severity and irrevocability, this court must
carefully review every death sentence to minimize the risk that the penalty is imposed in error or in an arbitrary
and capricious manner. Cf. Spaziano v. Florida, 468 U.S. 447, 460 n.7 (1984).
Pursuant to NRS 177.055(2)(c), we conclude that imposition of Hollaway's sentence was improperly
influenced in three ways. We therefore set aside Hollaway's sentence and remand for a new penalty hearing. See
NRS 177.055(3).
[Headnote 5]
First, during his final closing argument the prosecutor was asking how deep, deep into this man's being does
this violence run, when Hollaway's electronic stun belt was set off. This completely disrupted the proceedings,
requiring the jurors to leave the courtroom. When they returned, they were informed that Hollaway was wearing
an electronic stun belt. The timing could not have been better to reinforce the image of Hollaway as an extremely
violent man with whom authorities had to take exceptional security precautions.
4
Hollaway did absolutely
nothing to justify the belt's activation, and though it was apparently accidental, the State was solely responsible
for the accident. Although the district court did its best to allay any prejudice arising from this incident, the
incident remained an arbitrary and prejudicial factor which requires reversal of Hollaway's sentence.
[Headnote 6]
Second, the prosecutor's statement to the jury that Whiting's family would have no more holidays with their
daughter and their sister was improper. See Quillen v. State, 112 Nev. 1369, 1382, 929 P.2d S93, 901
{1996).
__________

4
In actuality, the jail had just received the stun belt device and was testing it by routinely putting it on
first-degree murder defendants.
........................................
929 P.2d 893, 901 (1996). The statement encouraged the jury to impose a sentence under the influence of
passion: holiday arguments are meant only to appeal to jurors' emotions and arouse their passions. Id.
[Headnote 7]
Third, under the circumstances of this case, we conclude that the jury required further instruction regarding
its responsibilities in assessing the evidence during the penalty phase.
The record before us exhibits sufficient evidence to support the conviction for first-degree murder. However,
it also reveals a number of potential mitigating factors. For example, there was substantial evidence that
Hollaway was remorseful following the murder. There was extensive evidence that alcoholic intoxication played
a major role in the crime. The record also showed that Hollaway and Whiting had been arguing incessantly when
the killing occurred. Further, the crime did not threaten or endanger any other persons. Also, Hollaway did not
flee or conceal the crime in any way or deny his actions; rather, he immediately reported the crime and admitted
his guilt.
[Headnote 8]
None of this in any way excuses or justifies Hollaway's crime, nor does any of this necessarily render
Hollaway death ineligible, but it could provide a basis for jurors to find the crime mitigated and impose a less
severe sentence. As explained below, due to Hollaway's refusal to present any case in mitigation, the prosecutors'
arguments, and the jury instructions, jurors may have erroneously concluded they were not required or even
permitted to determine for themselves whether any mitigating circumstances existed. Even where no mitigating
circumstances are presented at the penalty phase, the jurors may consider any evidence presented in the guilt
phase that may indicate that a penalty less than death is appropriate.
At the end of the penalty phase, in Hollaway's only statement to the jurors, he told them: As far as the
special verdict for the mitigating circumstances, defense is not alleging any mitigating circumstances, so I don't
see that you need to bother with that at all. The prosecutors also argued that no mitigating circumstances
existed. In final closing argument, the prosecutor told the jurors: If you determine that there are not mitigating
circumstances, and he has offered none and told you there are none, simply sign the form with no checks in any
of the boxes or on any of the lines. This is what the jury did.
The jury was not instructed in the penalty phase that statements, arguments, or opinions of counsel or a party
were not evidence in the case and that regardless of such statements, arguments, or opinions, its
deliberations were to be governed by the evidence as it understood and remembered it
and by the law as given it by the court.
........................................
ments, or opinions, its deliberations were to be governed by the evidence as it understood and remembered it and
by the law as given it by the court. Cf. Flanagan v. State, 112 Nev. 1409, 1420, 930 P.2d 691, 698 (1996). The
instructions directed the jury to determine whether any mitigating circumstances existed, but also informed the
jury that it only needed to consider evidence that the Defendant proffer[s] as a basis for a sentence less than
death.
The United States Supreme Court has held that to ensure that jurors have reliably determined death to be the
appropriate punishment for a defendant, the jury must be able to consider and give effect to any mitigating
evidence relevant to a defendant's background and character or the circumstances of the crime. Penry v.
Lynaugh, 492 U.S. 302, 328 (1989). In Penry, the absence of instructions informing the jury that it could
consider and give effect to certain mitigating evidence caused the Court to conclude that
the jury was not provided with a vehicle for expressing its reasoned moral response to that evidence in
rendering its sentencing decision. Our reasoning in [Lockett v. Ohio, 438 U.S. 586 (1978), and Eddings
v. Oklahoma, 455 U.S. 104 (1982),] thus compels a remand for resentencing so that we do not risk that
the death penalty will be imposed in spite of factors which may call for a less severe penalty.
Id. (quoting Lockett, 438 U.S. at 605). That same risk compels us to remand for resentencing here.
[Headnote 9]
If upon remand the State again seeks a death sentence and in all future cases where the death penalty is
sought, we direct that the following jury instruction be given.
In determining whether mitigating circumstances exist, jurors have an obligation to make an
independent and objective analysis of all the relevant evidence. Arguments of counsel or a party do not
relieve jurors of this responsibility. Jurors must consider the totality of the circumstances of the crime and
the defendant, as established by the evidence presented in the guilt and penalty phases of the trial. Neither
the prosecution's nor the defendant's insistence on the existence or nonexistence of mitigating
circumstances is binding upon the jurors.
III. Instruction regarding the proper use of evidence during the penalty phase
We are also concerned that the jury receive clear instruction regarding the proper use of evidence
introduced by the State which goes beyond proof of a statutory aggravating circumstance.
........................................
[Headnote 10]
[A] State's capital sentencing scheme . . . must genuinely narrow the class of persons eligible for the death
penalty.' Arave v. Creech, 507 U.S. 463, 474 (1993) (quoting Zant v. Stephens, 462 U.S. 862, 877 (1983)). To
implement this narrowing function, in 1977 the Nevada Legislature passed and the Governor approved Senate
Bill No. 220, which established the procedures by which capital punishment may be imposed in this state. See
S.B. 220, 59th Leg. (Nev. 1977). Basically, three types of evidence are relevant at the penalty hearing when the
State seeks a death sentence: evidence relating to aggravating circumstances, mitigating circumstances, and any
other matter which the court deems relevant to sentence. NRS 175.552(3).
[Headnotes 11-13]
Statutes and this court's case law make clear the nature and use of the first two types of evidence.
Aggravating circumstances are expressly enumerated by statute, and only evidence relevant to these enumerated
aggravators will serve to establish a defendant's eligibility for the death penalty. See NRS 200.030(4)(a); NRS
200.033; Middleton v. State, 114 Nev. 1089, 1116-17 & n.9, 968 P.2d 296, 314-15 & n.9 (1998), cert. denied,
120 S. Ct. 322 (1999). A mitigating circumstance can be any circumstance relative to the offense, defendant or
victim which a juror considers mitigating. See NRS 175.552(3); NRS 200.035(7); Evans v. State, 112 Nev.
1172, 1204, 926 P.2d 265, 285 (1996).
5
Aggravating evidence and mitigating evidence, of course, also entail
relevant rebuttal evidence: a defendant can offer evidence to rebut the State's proof of aggravating
circumstances, as can the State to rebut proof of mitigating circumstances.
[Headnotes 14, 15]
Under Nevada's capital sentencing scheme, two things are necessary before a defendant is eligible for death:
the jury must find unanimously and beyond a reasonable doubt that at least one enumerated aggravating
circumstance exists, and each juror must individually consider the mitigating evidence and determine that any
mitigating circumstances do not outweigh the aggravating.
__________

5
In Evans, we approved the following jury instruction:
The mitigating circumstances which I have read for your consideration are given only as examples of
some of the factors you may take into account as reasons for deciding not to impose a sentence of death
on the defendant. Any aspect of the defendant's character or record and any of the circumstances of the
offense, including any desire you may have to extend mercy to the defendant, which a jury believes is a
basis for imposing sentence less than death may be considered a mitigating factor. Any one of them may
be sufficient, standing alone, to support a decision that death is not the appropriate punishment in this
case.
Evans, 112 Nev. at 1204, 926 P.2d at 285-86.
........................................
Geary v. State, 114 Nev. 100, 105, 952 P.2d 431, 433 (1998). Even if the jury as a whole finds aggravating
circumstances and every juror determines that mitigating circumstances either do not exist or do not outweigh
the aggravating, the defendant is only death-eligible. The jury must then decide on a sentence unanimously and
still has discretion to impose a sentence less than death. See NRS 175.554(2), (3); NRS 175.556; Bennett v.
State, 111 Nev. 1099, 1109-10, 901 P.2d 676, 683 (1995).
[Headnotes 16, 17]
We are concerned here with explaining the nature and use of the third type of evidence, permitted by NRS
175.552(3), concerning any other matter which the court deems relevant to sentence. Because evidence
relevant to mitigation is broadly defined, this provision is of little practical benefit to the defendant. Normally,
NRS 175.552(3) serves to permit the State to introduce evidence against the defendant which goes beyond the
enumerated statutory aggravators, but this other matter evidence is restricted in its scope and use. It must be
relevant, and its danger of unfair prejudice must not substantially outweigh its probative value. McKenna v.
State, 114 Nev. 1044, 1051-52, 968 P.2d 739, 744 (1998), cert. denied, 120 S. Ct. 342 (1999). To be relevant,
like mitigating evidence, it must relate to the offense, defendant or victim. See NRS 175.552(3). Furthermore,
under Nevada's statutory sentencing scheme, the State can offer this evidence for only one purpose: for jurors to
consider in deciding on an appropriate sentence after they have determined whether the defendant is or is not
eligible for death.
[Headnotes 18-21]
Other matter evidence is not admissible for use by the jury in determining the existence of aggravating
circumstances or in weighing them against mitigating circumstances. See Middleton, 114 Nev. at 1116-17 & n.9,
968 P.2d at 314-15 & n.9. Such use of this evidence would undermine the constitutional narrowing process
which the enumeration and weighing of specific aggravators is designed to implement. We therefore direct the
district courts at capital penalty hearings to ascertain the purpose for which the State offers any evidence and to
inform the jury of the evidence's proper use. Three purposes are proper: to prove an enumerated aggravator, to
rebut specific mitigating evidence, or to aid the jury in determining the appropriate sentence after any
enumerated aggravating circumstances have been weighed against any mitigating circumstances. When the State
offers evidence for the last purpose, the court must admonish the jury that the evidence is not to be used in
determining the existence or the weight of aggravating circumstances. Once the jurors determine whether or not
the defendant is death-eligible,
........................................
not the defendant is death-eligible, then they must consider all the relevant evidence to determine the appropriate
sentence for the defendant. See id.
CONCLUSION
[Headnote 22]
The Eighth Amendment requires that the death penalty be imposed fairly, and with reasonable consistency,
or not at all. Eddings, 455 U.S. at 112. We believe that capital trials in this state normally result in fair and
reasonably consistent imposition of the death penalty. In this case, with the unprovoked electric shocking of a
capital defendant at his penalty hearing in the presence of jurors and with the lack of an instruction affirmatively
informing the jurors of their responsibility to independently assess all the evidence in considering mitigation, we
cannot conclude that this constitutional requirement was met.
Therefore, we affirm Hollaway's judgment of conviction but reverse his sentence and remand for a new
penalty hearing consistent with this opinion.
Agosti and Becker, JJ., concur.
Rose, C. J., concurring:
I concur with the majority's conclusion that this matter should be remanded for a new penalty hearing
because the activation of Hollaway's stun belt was an arbitrary and prejudicial act that improperly influenced the
jury. I believe that giving an additional instruction on the jury's consideration of mitigating circumstances is
appropriate. I write separately, however, because I further conclude that this case should be remanded with
special instructions that separate counsel be appointed to represent the State's interest in ensuring a reliable
penalty determination. See New Jersey v. Loedatich, 548 A.2d 939 (N.J. 1988).
Nevada's statutory scheme includes numerous safeguards to ensure that the death penalty determination is
reliable and not given randomly or disproportionately. Indeed, NRS 175.554(3) prohibits a jury from imposing a
death sentence in matters where the mitigating circumstances outweigh the aggravating ones. The majority
opinion properly observes that the United States Supreme Court requires a jury to be able to consider and give
effect to any relevant mitigating evidence. Penry v. Lynaugh, 492 U.S. 302, 328 (1989). I do not see how a jury
could fulfill its legal, and perhaps moral, duty of considering the mitigating circumstances when no such
evidence is presented.
Further, NRS 177.055(2)(d) compels this court to consider [w]hether the sentence of death is excessive,
considering both the crime and the defendant."
........................................
the crime and the defendant. (Emphasis added.) This provision not only permits, but requires, this court to
consider any mitigating evidence when determining whether a death sentence is excessive. This statutory
mandate, however, is thwarted in circumstances where compelling mitigating evidence is neither investigated nor
presented at the sentencing phase.
Although we concluded in Colwell v. State, 112 Nev. 807, 919 P.2d 403 (1996), that a criminal defendant is
entitled to represent himself in any manner he wishes, we did not address whether the State had an interest in
assuring the presentation of mitigating evidence.
1
This court has recognized that Nevada has an interest in
preserving life and preventing suicide. See McKay v. Bergstedt, 106 Nev. 808, 801 P.2d 617 (1990). With
respect to this issue, I conclude that because the State has a strong interest in protecting against arbitrary
implementation of the death penalty, a representative should be appointed for sentencing to prevent such
arbitrary imposition of the death penalty. This representative would act as an amicus curiae and investigate and
present mitigating factors, thus fulfilling the aforementioned statutory directives that safeguard against random
and arbitrary death sentences.
I concur with the majority that Hollaway's conviction on the charge of first-degree murder should be
affirmed. I also agree with the majority's statements of doctrine with regard to the process by which persons
charged with murder in Nevada may receive the death penalty. Thus, I further agree that a second sentencing
hearing is required, but primarily because of the activation of the stun belt during the State's closing argument.
1

I do have some concern with the majority's observation that evidence admitted at the guilt phase may be
considered by the jury in mitigation of penalty. First, there will be no guilt phase on remand. Second, if
Hollaway continues in his quest to be executed, that evidence will never come to light. Third, the defendant,
although having no right to set his own penaltyit is the prerogative of the jury or a three-judge panel to
determine that issuehas the absolute right to waive or renounce the presentation of any evidence. Thus, on
remand, while the process should proceed as indicated by the majority, some of that process
may not eventuate at Hollaway's election.
__________

1
I note, however, that a defendant's right to control his defense is not without limitations. For example, NRS
177.055(2) mandates that this court review a defendant's sentence of death, regardless of whether the defendant
waived his right to appeal. This statute is protective; it furthers the State's interest in ensuring that a death
sentence was not arbitrarily imposed, regardless of the defendant's desire to forego such review.

1
I do not, however, attach the same significance to the conduct of the prosecutors at trial. My review of the
record demonstrates that, with the few exceptions noted by the majority, the prosecutors exercised considerable
restraint in their presentation of the case against Hollaway.
........................................
proceed as indicated by the majority, some of that process may not eventuate at Hollaway's election.
Young, J., with whom Leavitt, J., joins, dissenting:
I respectfully dissent because I disagree with the majority's conclusion that Hollaway's sentence was imposed
under the influence of prejudicial and arbitrary factors.
While review of this case is required by statute, under the facts and circumstances of the instant appeal, I feel
that more consideration should have been given to Hollaway's competency and desire to represent himself in the
manner in which he saw fit. Hollaway was initially examined by a psychiatrist who recommended further
evaluation and a psychologist who concluded that he was competent to stand trial. Hollaway was subsequently
committed to Lakes Crossing Center, a decision which the district court later characterized as a very, very close
question in the first place. Several months after commitment, the district court reviewed the reports of a sanity
commission, comprised of two psychiatrists and one psychologist, concluding that Hollaway was competent to
stand trial. The district court agreed with this determination and found Hollaway competent to stand trial. The
district court also concluded that Hollaway had the right to represent himself. Hollaway has not expressed
dissatisfaction with the guilt or penalty phases of his trial and has not pursued this appeal. Therefore, I feel that
remanding for a new penalty hearing is unwarranted.
The majority concludes that the imposition of Hollaway's sentence was improperly influenced in three ways.
First, the majority cites the incident in which Hollaway's electronic stun belt was accidentally set off. The district
court immediately excused the jury and ascertained that the belt had merely malfunctioned. After calling the jury
back into the courtroom, the district court informed the jury that
[t]he corrections officers often ask with people who are charged with murder to use the latest technology.
Mr. Hollaway is wearing a belt, an electric belt. It's only supposed to be used if the defendant causes
some problem. Mr. Hollaway, not today, nor at any other day in this [c]ourt, nor as far as I know in the
jail, has caused any trouble at all. But he does have the belt on, and the court services officer in leaning
over, he has the control in his pocket, just zapped Mr. Hollaway accidentally. That causes him to get
quite a shock, an electric shock, and as I said, he did absolutely nothing to cause it. It was a pure
accident. Every once in a while there are people that cause disruptions in court. Mr. Hollaway hasn't at
any time done that.
........................................
The majority appears very focused on the fact that Hollaway did nothing to provoke the activation of the stun
belt. However, it is clear from the above quotation that this fact was made abundantly clear to the jury by the
district court. I conclude that it is unnecessary to remand this case for an entirely new sentencing phase based on
an accident that was immediately explained to the jury and appropriately handled by the district court.
Second, the majority finds that the holiday arguments made by the prosecutor to the jury in closing
arguments during the penalty phase were improper. In support of this finding, the majority cites Quillen v. State,
112 Nev. 1369, 929 P.2d 893 (1996). The prosecutor in Quillen referred to Thanksgiving no fewer than eight
times, stating on two occasions that [the victims] were having their Thanksgiving meal' when they were
attacked. Quillen, 112 Nev. at 1381, 929 P.2d at 901. In the instant case, the prosecutor only once stated to the
jury that Whiting's family would have no more holidays with their daughter and their sister. I conclude that while
improper, the prosecutor's comments clearly do not rise to the level of egregious conduct with which this court
was concerned in Quillen.
Finally, the majority concludes that under the circumstances of this case, the jury required further instruction
regarding its responsibilities in assessing the evidence during the penalty phase.
The majority first concludes that the jury was not instructed in the penalty phase that the statements,
arguments, or opinions of counsel or a party were not evidence in the case and that their deliberations were to be
governed by the evidence as understood and remembered and by the law as given it by the court. However, the
record reveals that the jury did receive such instruction during the guilt phase. Further, this court has never held
that it is mandatory that such an instruction be given during the penalty phase and does not appear to do so now.
Next, the majority also concludes that under Penry v. Lynaugh, 492 U.S. 302 (1989), to ensure that jurors
have reliably determined death to be the appropriate punishment for a defendant, the jury must be able to
consider and give effect to any mitigating evidence relevant to a defendant's background and character or the
circumstances of the crime. Id. at 328. However, the defendant in Penry, unlike Hollaway, offered mitigating
evidence of his mental retardation and abused childhood in support of a sentence of life imprisonment as
opposed to death. Id. at 320. The Court was concerned that the jury would be unable to give effect to that
mitigating evidence under the instructions given in the case. Id. at 326. However, this is not the issue in the
present case because Hollaway did not present any mitigating evidence. Therefore, I conclude that Penry is
inapplicable to the instant case.
........................................
Here, the majority is imposing an additional burden upon the jury in considering whether mitigating
circumstances exist by instructing the jury to make an independent and objective analysis of all the relevant
evidence. I find this type of instruction unnecessary because the Nevada legislature has already spoken on this
issue. NRS 175.554 provides in pertinent part:
1. If the penalty hearing is conducted before a jury, the court shall instruct the jury at the end of the
hearing, and shall include in its instructions the aggravating circumstances alleged by the prosecution
. . . . The court shall also instruct the jury as to the mitigating circumstances alleged by the defense
upon which evidence has been presented during the trial or at the hearing.
If the legislature intended for the jury to conduct an independent review of all the evidence presented during
both the guilt and penalty phases in a search for mitigating evidence, the legislature would have included such an
instruction in this statute. Instead, the statute very clearly states that the court shall instruct the jury as to the
mitigating circumstances alleged by the defense. In this case, there is no mitigating evidence to be considered
because Hollaway chose not to present any. The majority goes beyond the intention of the legislature and places
an additional and unnecessary burden upon our juries in cases in which the death penalty is sought.
Finally, Hollaway has made it clear that he wanted no defense presented at trial, nor did he want mitigating
evidence presented during the penalty phase. In fact, Hollaway himself was not interested in actively pursuing
this appeal. This being the case, it would appear that remanding to the district court for a second penalty phase is
a useless, expensive, and time-consuming undertaking.
The new instruction imposed by the majority requires the jury to review the evidence presented during both
the guilt and penalty phases. However, the jury impaneled on remand will presumably be a new jury that did not
sit for the extensive presentation of evidence that occurred during the guilt phase. Additionally, the State will
most likely introduce only the most damning and inculpatory evidence against Hollaway upon remand at the
second penalty hearing. Finally, there is no indication that Hollaway has experienced a change of heart and now
wishes to present mitigating evidence. Therefore, I believe that remanding this case for a new penalty hearing
will be a costly exercise in futility and may give rise to additional appeals. Therefore, I would affirm Hollaway's
sentence.
For the foregoing reasons, I dissent.
____________
116 Nev. 752, 752 (2000) Bridges v. State
SEBASTIAN S. BRIDGES, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32887
August 23, 2000 6 P.3d 1000
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count each of first degree
kidnapping with the use of a deadly weapon, second degree kidnapping with the use of a deadly weapon, battery
with the use of a deadly weapon, and first degree murder with the use of a deadly weapon, and from a sentence
of death. Eighth Judicial District Court, Clark County; Jeffrey D. Sobel, Judge.
Defendant was convicted, after a jury trial in the district court of first degree kidnapping with the use of a
deadly weapon, second degree kidnapping with the use of a deadly weapon, battery with the use of a deadly
weapon, and first degree murder with the use of a deadly weapon, and was sentenced to death. Defendant
appealed. The supreme court held that: (1) trial court properly limited the scope of recross-examination of
kidnapping victim to show bias, (2) prosecutor's reference to defendant's failure to testify was not plain error
under the circumstances, (3) evidence established kidnapping, (4) penalty-phase error in aggravating
circumstance instruction was harmless, (5) error was harmless as to prosecutor's improper use of terms such as
aggravating and aggravation to refer to evidence that was not relevant to the statutory aggravating
circumstance, and (6) death penalty was not excessive punishment.
Affirmed.
Morgan D. Harris, Public Defender, and Robert L. Miller, Deputy Public Defender, Clark County, for
Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, Brian S.
Rutledge, Chief Deputy District Attorney, and David T. Wall, Deputy District Attorney, Clark County, for
Respondent.
1. Witnesses.
The trial court properly limited the scope of defendant's recross-examination of kidnapping victim to show bias, after
victim had referred during State's redirect examination to having had a relationship outside of prison, by precluding
defendant from asking the victim whether she had breached a duty of trust as a peace officer/nurse by having a relationship
with defendant when he had been an inmate or by having a relationship with another inmate. The questioning was of marginal
relevance to victim's bias or motive to fabricate, defendant was able to elicit testimony that a relationship with an inmate was
against the law, and questioning regarding the other inmate exceeded the scope of permissible recross-examination. NRS
48.015 et seq., 50.115.
........................................
2. Witnesses.
Although the district court's discretion to limit cross-examination regarding potential bias is limited, judges retain wide latitude to
restrict such inquiry based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness's safety,
or interrogation that is repetitive or only marginally relevant.
3. Criminal Law.
If defendant does not object at trial and preserve issues for appeal, defendant is not entitled to relief on appeal absent plain or
constitutional error.
4. Criminal Law.
There was no plain error or constitutional error in allowing jury to hear portion of letter defendant had written to his wife before
trial, in which defendant stated that what two people share in a marriage should be sacred, something most Americans don't know
anything about, though defendant claimed the statement prejudicially referred to nationality because defendant was from South
Africa, where defendant had made the tactical decision to allow the jury to hear the entire letter and the statement was relevant to
defendant's motives, such as jealousy or possessiveness, for kidnapping his wife and killing her lover.
5. Criminal Law.
The State is free during closing arguments to comment on the evidence and invite the jury to draw reasonable inferences.
6. Criminal Law.
Failure to give an additional instruction on the deliberation element of first degree murder, so that the distinctions between
premeditation, deliberation, and malice aforethought would not be blurred, was not plain error or constitutional error, where the
evidence of premeditation and deliberation was overwhelming and the conviction was also supported, on an independent basis, by
overwhelming evidence of first degree murder under a felony murder theory.
7. Criminal Law.
Prosecutor's comment during his objection to pro se defendant's closing argument, that the defendant was presenting his
testimony and that [i]f he would like to be sworn, he had the opportunity to do that, was not plain error as to defendant's right
against self-incrimination, where the prosecutor did not ask the jury to draw any impermissible inference or otherwise negatively
comment on the defendant's failure to testify, and the trial court had already allowed defendant to explain why he did not testify. U.S.
Const. amend. 5.
8. Criminal Law.
A direct comment by the prosecution on defendant's failure to testify violates the constitutional right against self-incrimination.
9. Criminal Law.
An indirect reference to the defendant's failure to testify violates the constitutional right against self-incrimination if the language
used was manifestly intended to be or was of such a character that the jury would naturally and necessarily take it to be comment on
the defendant's failure to testify. U.S. Const. amend. 5.
10. Criminal Law.
A prosecutor's comments should be viewed in context, and a criminal conviction is not to be lightly overturned on the basis of a
prosecutor's comments standing alone.
........................................
11. Criminal Law.
Where the prosecutor's reference to the defendant's opportunity to testify is a fair response to a claim made by defendant or his
counsel, there is no violation of the constitutional right against self-incrimination. U.S. Const. amend. 5.
12. Kidnapping.
Testimony from defendant's wife that defendant used a ruse to lure her lover to a remote location for the purpose of killing him and
that defendant actually killed the lover in the course of the kidnapping, and the physical evidence found in defendant's vehicle,
established first degree kidnapping with the use of a deadly weapon.
Kidnapping, as aggravating circumstance at penalty phase of capital murder trial, was established by testimony from defendant's
wife that defendant used a ruse to lure her lover to a remote location for the purpose of killing him and that defendant actually killed
the lover in the course of the kidnapping, and by the physical evidence found in defendant's vehicle.
14. Criminal Law.
When the supreme court reviews the evidence supporting a jury's verdict, the question is whether the jury, acting reasonably, could
have been convinced of the defendant's guilt beyond a reasonable doubt by the evidence it had a right to consider.
15. Kidnapping.
A kidnapping does not require force or restraint. NRS 200.310.
16. Criminal Law.
Error was harmless at penalty phase of capital murder trial in giving aggravating circumstance instruction that referred to the
murder being committed during a kidnapping with use of a deadly weapon, without specifying that the kidnapping had to be the first
degree kidnapping of the murder victim rather than the second degree kidnapping of the victim's lover, where the jury previously had
found defendant guilty of the first degree kidnapping and there was no mitigating circumstance to weigh against the aggravating
circumstance. NRS 200.033(4).
The federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid
or improperly defined aggravating circumstance either by reweighing the aggravating and mitigating evidence or by harmless-error
review.
18. Criminal Law.
Error was harmless as to prosecutor's improper use, during rebuttal closing argument in penalty phase of capital murder trial, of
terms such as aggravating and aggravation to refer to evidence that was not relevant to the statutory aggravating circumstance of
murder committed in the course of kidnapping with use of a deadly weapon, where the jury instructions, the prosecutor's closing
argument, and the special verdict form reflected only one aggravating circumstance and the weighing process could not have been
tainted because there was little to weigh on the side of mitigation.
19. Criminal Law.
Because the term aggravating circumstance is a term of art, misleading references to aggravation or aggravating could taint
the jury's weighing of the legitimate aggravating and mitigating circumstances at the penalty phase of a capital murder trial, resulting
in the arbitrary imposition of the death penalty.
........................................
20. Criminal Law.
Where the defendant represented himself, he could not complain that his own representation constituted ineffective assistance of
counsel. U.S. Const. amend. 6.
21. Criminal Law.
Defendant's waiver of his right to counsel at his capital murder trial was valid, knowing, voluntary, and intelligent, even if
defendant had narcissistic personality disorder, where three experts determined that defendant was competent to proceed and capable
of representing himself, and the trial court carefully canvassed defendant and admonished him concerning the dangers of
self-representation. U.S. Const. amend. 6.
A criminal defendant is entitled to represent himself in whatever manner he wishes, whether that be by introducing mitigating
evidence at the penalty phase of a capital murder trial, by not introducing mitigating evidence, or even by actively seeking the death
penalty.
23. Homicide.
Death penalty was not excessive punishment, where defendant behaved in a calculated fashion in tracking down his wife and her
lover several months after she left him and in killing the lover, the killing was not immediately preceded by a dispute or altercation,
defendant treated the dying lover with extreme callousness, defendant placed the blame on other individuals, including his wife, and he
had a prior criminal history, although it apparently did not involve violent offenses.
OPINION
Per Curiam:
The State charged appellant Sebastian Stephanus Bridges with the October 26, 1997, murder of Hunter
Blatchford, and with related offenses. The State sought the death penalty for the murder. Bridges represented
himself at trial pursuant to his own request, after the district court found him competent to proceed and
capable of representing himself.
Bridges was subsequently convicted of: (1) first degree kidnapping (of Blatchford) with the use of a
deadly weapon; (2) second degree kidnapping (of Bridges' wife, Laurie) with the use of a deadly weapon; (3)
battery (of Laurie) with the use of a deadly weapon; and (4) murder with the use of a deadly weapon. After
the penalty hearing, the jury sentenced Bridges to death for the murder, finding one aggravating
circumstance: that the murder was committed during a kidnapping or attempted kidnapping with the use of a
deadly weapon. The district court sentenced Bridges to terms of imprisonment for the other offenses. The
district court entered the judgment of conviction on July 24, 1998.
This appeal followed. We affirm Bridges' conviction and sentence of death.
........................................
FACTUAL SUMMARY
Guilt phase evidence
Laurie Bridges (Laurie), Bridges' wife, testified to events leading up to the murder of Hunter Blatchford.
Laurie and Bridges were living together in California prior to May of 1997, when Laurie decided to leave
Bridges and go to Las Vegas. She did not tell Bridges that she was leaving or where she was going.
While in Las Vegas, Laurie became involved in a serious relationship with Hunter Blatchford.
1
Laurie
avoided contact with Bridges out of fear; Bridges had threatened that if he ever found out that she was with
another man, he would kill both Laurie and the other man.
Bridges eventually tracked Laurie down. On October 21, 1997, he confronted her at the residence she
shared with Blatchford. Bridges had a gun, and he told Laurie that he had tried to kill himself but could not do
it. During an emotional discussion, Bridges gave the gun to Laurie and suggested that she kill him; Laurie
refused. Ultimately, Bridges asked Laurie to drive him to the apartment where he was staying, and she agreed.
At his apartment, Bridges pleaded with Laurie to give him another chance. Bridges then asked if they could
at least be friends, and he gave Laurie his phone number. Subsequently, Bridges asked Laurie to drive him back
to his car, which he had left near her residence.
In Laurie's truck, Bridges handed her a key that fit the ignition. Bridges said, [J]ust remember wherever
you go, whatever you do for the rest of your life I'll know where you are and what you're doing, and you can
never get away from me. Bridges told Laurie that he had been secretly watching her and Blatchford for the
last three weeks and that he knew their schedules.
Later that day, Laurie told Blatchford of her encounter with Bridges. Using the phone number that Bridges
had given to Laurie, Blatchford called Bridges and spoke with him on at least two occasions. Blatchford and
Bridges agreed to meet, together with Laurie, at Bridges' apartment. According to Laurie, the purpose of the
meeting was to bring closure to the whole thing . . . so that everybody would know where they stood and what
was what and end it.
At approximately 5:00 p.m. on October 26, the trio met at Bridges' apartment. They discussed why Laurie
had left, and they discussed an offer by Bridges to buy Blatchford a new truck if Blatchford would allow Laurie
to return and live with Bridges for two months. Blatchford refused. Additionally, Bridges offered Laurie
$50,000 in cash that he claimed was her share of a business that he had liquidated.
__________

1
Laurie and Blatchford originally met as co-workers in 1996, while Laurie and Bridges were living in Las
Vegas.
........................................
Laurie $50,000 in cash that he claimed was her share of a business that he had liquidated.
Bridges ultimately informed the couple that he was leaving the next day, but that he had some of Laurie's
belongings and other household items in storage. Laurie and Blatchford agreed to go with Bridges, in his car, to
the supposed storage site. At that time, Laurie observed that Bridges was upset but that he did not seem
threatening, and it appeared that he was going to accept the situation.
Bridges drove to a remote location where several trailers were sitting. It was getting dark by this time. The
trio got out of the car, and Bridges directed Blatchford and Laurie to one of the trailers that Bridges claimed had
his name on it. Bridges indicated that he would give them the key to the trailer, which he had left at his car, so all
three returned to the car.
After Blatchford and Laurie got into the car, Bridges reached down near the driver's seat and pulled out a
gun. The child safety locks in the car were engaged, so Laurie and Blatchford could not get out of the car.
Bridges turned very angry in his face and he said, now we're really gonna talk, now we're really gonna talk,
and he pointed the gun at Blatchford. Blatchford responded, [Y]ou're gonna kill me now, aren't you? I trusted
you. I trusted you, man, we were gonna talk. Then, Bridges fired one shot at Blatchford, hitting him in the
abdominal region. Bridges told Laurie that it was her fault that a man had to die because of what she had done.
Blatchford groaned and fell unconscious shortly after the shooting. Bridges began beating Blatchford over the
head with the gun. Laurie put her hand up to stop Bridges from hitting Blatchford, and he struck her three times
with the gun: once on each side of the head and once on the hand.
Bridges handcuffed Blatchford and Laurie, and he placed cuffs on Laurie's legs.
2
Bridges used garbage bags
to cover Blatchford's body; he told Laurie that he did not want police to see the body. Afterwards, he drove with
Laurie toward California.
Bridges exited the freeway at Nipton Road and stopped the car. He removed Laurie's leg-cuffs. Using a
shovel taken from the trunk of his car, Bridges dug a grave for Blatchford. Before placing the body in the grave,
Bridges removed the handcuffs and garbage bags from the body. Bridges also decided to remove Blatchford's
clothes, apparently to expedite the decomposition process. He then covered Blatchford's body with dirt and
rocks. Before they left the site, Bridges removed Laurie's handcuffs.
Bridges and Laurie left the gravesite, and Bridges drove back toward Las Vegas.
__________

2
The State produced photographs taken after the incident that showed that Laurie sustained visible injuries to
the head and that she had marks on her wrists consistent with handcuffing.
........................................
toward Las Vegas. Bridges told Laurie that she must never tell anyone what had happened and that, if she told,
she would be implicated. Laurie responded that she would not tell, and she asked Bridges to let her go. He
indicated that he did not trust her and that he would take her to his apartment to stay with him. At one point,
Bridges asked Laurie whether it would make her happy if he shot himself or turned himself in.
During the drive, Bridges began fiddling with the gun. Bridges indicated that the gun was jammed, and
Laurie warned him that the gun might discharge if he tried to fix it while driving. Bridges pulled his car off the
road and tried to fix the gun. Then, a policeman pulled up, exited his car, and approached Bridges' car. Bridges
gave the gun to Laurie, telling her to place it between her legs.
Officer Kenneth M. Twiddy testified concerning the following events. At approximately 9:48 p.m., Twiddy
observed Bridges' car parked at the shoulder of the road. He stopped and approached Bridges to see if he needed
assistance. Bridges told Twiddy that he had stopped so that a woman passenger could go to the bathroom. At one
point during the conversation, Twiddy pointed his flashlight inside the car and observed Laurie, who was
shaking and appeared frightened. Twiddy also observed what appeared to be blood on the passenger seat,
console, door, and driver's seat, and he observed ammunition on the floor of the car. Twiddy called for back-up,
and he ordered Bridges to step out of the car and approach Twiddy's police car.
After Bridges had exited the car, and while Twiddy was speaking with him, Laurie emerged from the driver's
side and came toward Twiddy. Laurie yelled that Bridges had murdered her friend. Twiddy searched Bridges for
weapons and found a pair of handcuffs in Bridges' back pocket. In addition, Twiddy noticed blood on Bridges'
pants and shirt, and dirt on his hands, arms, and nails, and on his shoes.
After back-up arrived, the investigation continued. Bridges waived his rights pursuant to Miranda
3
and
spoke with police about what had happened. Bridges eventually admitted to shooting Blatchford, but he claimed
that it was an accident. Bridges told police that he had wanted to take his wife and Blatchford to California so
that they could see a priest. Bridges stated that, at gunpoint, he ordered Blatchford to place handcuffs on his
wrists. According to Bridges, the gun accidentally discharged. Bridges admitted that he had buried the body in
the desert.
A search of the passenger compartment of Bridges' car resulted in the discovery of several items, including:
(1) a Colt .45 pistol and a holster; (2) .45 magazines and cartridges; (3) a pin used for
assemblingJdisassembling the gun;
__________

3
Miranda v. Arizona, 384 U.S. 436 (1966).
........................................
assembling/disassembling the gun; (4) a bag containing two rolls of duct tape and a box of 42-gallon plastic
trash bags (as well some of the ammunition noted above); (5) a bank bag containing $50,000 in cash; (6) two
sets of handcuffs and a set of leg-cuffs; and (7) a plastic bag containing latex gloves, white nylon ropes, black
nylon cords, a black shirt, a black stocking cap, a pair of black gloves, and a box of envelopes. A search of the
trunk yielded several additional items, including: (1) a stun gun; (2) a shovel; and (3) a black plastic bag
containing bloodstained clothing and a wallet belonging to Blatchford. Police obtained a positive match for
Bridges' fingerprints on the pistol, one of the magazines, the leg-cuffs, the lid of the trunk, and the rear driver's
side door.
Blatchford's body was exhumed. An autopsy revealed that Blatchford had sustained a single, close-range,
non-contact gunshot that went through his left forearm and abdominal area, perforating the small intestine and
cutting the internal iliac artery. As a result, Blatchford suffered internal hemorrhaging, causing his death at the
earliest five minutes, and probably ten to fifteen minutes, after he was shot.
Bridges did not testify at trial or call any witnesses. However, he argued that the shooting was accidental.
Penalty phase
During the penalty phase, the State produced evidence that Bridges had been involved in property crimes in
California that resulted in charges and convictions for criminal offenses, including burglary. In one incident,
Bridges stole property worth possibly more than $200,000. The State also presented victim impact testimony.
Bridges did not present any witnesses.
In closing argument, prosecutor David T. Wall reviewed the procedure for determining the penalty. Bridges
then spoke:
If what [the prosecutors say] is true, there's only one equation, and I don't think I have to even tell
you what that is.
I know I didn't murder Hunter Blatchford. You've made a determination; it took you twenty-five
minutes to determine my innocence versus my guilt. If you could make that determination in twenty-five
minutes based on lies, then it shouldn't even take your twenty-five minutes to come to a conclusion.
There's only one answer to the equation, and that is to execute me.
Thank you.
In rebuttal, prosecutor Gary L. Guymon remarked that Bridges had on several occasions invited the jury to take
his life. Guymon discussed the circumstances of the crime and concluded by commenting that the law
permitted imposition of the death penalty and that the death penalty was appropriate in
this case.
........................................
menting that the law permitted imposition of the death penalty and that the death penalty was appropriate in this
case.
DISCUSSION
Bridges is represented by counsel in this appeal. Bridges, through counsel, makes several arguments
challenging his conviction and sentence.
Bridges' recross-examination of Laurie
[Headnote 1]
Bridges claims that the district court erroneously restricted his recross-examination of Laurie. The relevant
facts surrounding the redirect and recross-examination are important to considering Bridges' claim.
On redirect, the State questioned Laurie about a letter that she had written to Bridges. According to the trial
transcript, Laurie indicated that she wrote the letter before she ever had a relationship outside of the person
with whom. It appears from Bridges' statements and from the subsequent discussion of Laurie's testimony
outside the presence of the jury that Laurie said prison rather than person.
4
The court indicated that any
reference to Bridges' incarceration was unclear, but that the court would be willing to give a cautionary
instruction or permit Bridges to conduct further inquiry of Laurie. Ultimately, Bridges decided not to ask Laurie
any further questions.
However, Bridges subsequently changed his mind after the next witness began to testify. The court permitted
Bridges to conduct a limited recross-examination on the very limited area of the redirect to explore what
Laurie said about meeting Bridges outside of prison. During the recross-examination, Bridges elicited
testimony that established that: (1) Laurie met him while he was a prison inmate and while Laurie was a peace
officer/nurse at the prison; (2) Laurie became involved in a physical relationship with Bridges; and (3) it was
against the law to have such a relationship.
On appeal, Bridges claims that the district court erroneously precluded questioning as to: (1) whether
Laurie breached a duty of trust when she became involved in a physical relationship with Bridges while she was
working at the prison; and (2) whether Laurie also breached a duty of trust by having a relationship with
another inmate.
We conclude that the district court did not err in restricting questioning on these two points. Although the
court did not permit Bridges to ask Laurie specifically whether she breached a duty of trust,
__________

4
The State conceded, at oral argument, that the transcript likely contains an error in that Laurie did refer to
prison during questioning.
........................................
mit Bridges to ask Laurie specifically whether she breached a duty of trust, the court subsequently (as noted
above) permitted him to elicit Laurie's admission that it was against the law for her to have a relationship with an
inmate. Inquiry as to whether Laurie had also acted improperly with another inmate would have clearly exceeded
the permissible scope of the recross-examination. Given the marginal relevance of the inquiry, the court did not
err in precluding further inquiry into this area. See NRS 50.115; see also NRS 48.015-.035.
[Headnote 2]
We reject Bridges' argument that the district court was required to permit further questioning to show bias or
emotional partiality of Laurie. The proposed questioning was of marginal relevance to the issue of Laurie's
veracity and would have provided little evidence of bias or a motive to fabricate. Further, although the district
court's discretion to limit cross-examination regarding potential bias is limited,
5
consistent with constitutional
norms trial judges retain wide latitude to restrict such inquiry based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only
marginally relevant. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); see also Davis v. Alaska, 415 U.S.
308, 316, 320 (1974); Bushnell v. State, 95 Nev. 570, 573, 599 P.2d 1038, 1040 (1979) (recognizing that
inquiry into a witness's possible bias or motive to testify could be restricted when the inquiry was repetitive,
irrelevant, vague, speculative, or designed merely to harass, annoy or humiliate the witness).
Alleged error at guilt phase not preserved for appeal
[Headnote 3]
Bridges raises three instances of alleged error that occurred during the guilt phase of his trial, but that he
did not properly preserve for appeal by appropriate objection. Given that Bridges failed to timely object and
preserve these issues for appeal, he is not entitled to relief absent plain or constitutional error. See Sterling v.
State, 108 Nev. 391, 394, 834 P.2d 400, 402 (1992).
[Headnote 4]
First, Bridges complains that the district court erred in permitting an allegedly prejudicial reference to
nationality in a letter written by him to Laurie prior to trial. Specifically, Bridges, who is from South Africa,
objects to the following reference: what two people share in a marriage should be sacred,
__________

5
See Jackson v. State, 104 Nev. 409, 412, 760 P.2d 131, 133 (1988); Bushnell v. State, 95 Nev. 570, 572-73,
599 P.2d 1038, 1039-40 (1979).
........................................
two people share in a marriage should be sacred, something most Americans don't know anything about.
6
(Emphasis added.)
Bridges concedes that he failed to make a timely objection to the reference. The district court repeatedly told
Bridges that he was entitled to the redaction of potentially prejudicial references in the letter. Bridges ultimately
refused, indicating that he wanted the jury to see the whole letter. In closing argument, the State specifically
referred to certain passages, including the one quoted above, as reflecting Bridges' attempt to manipulate Laurie.
[Headnote 5]
We conclude that Bridges has failed to demonstrate plain or constitutional error. Bridges made a tactical
decision not to contest the letter so that it would be admitted in its entirety. Further, the letter (including the
quoted reference) was relevant to Bridges' motive for the offense, as it is strong evidence of Bridges' jealousy
and possessiveness. Additionally, it could reasonably be argued from the evidence that Bridges was attempting
to manipulate or coerce his wife, the key State witness in this case. The State was free to comment on the
evidence, including the letter, and invite the jury to draw such reasonable inferences. See Green v. State, 81 Nev.
173, 176, 400 P.2d 766, 767 (1965) (The prosecutor had a right to comment upon the testimony and to ask the
jury to draw inferences from the evidence, and has the right to state fully his views as to what the evidence
shows.).
[Headnote 6]
Second, Bridges argues that the jury instructions blurred the distinction between the elements of first degree
murder (premeditation and deliberation) and malice aforethought. Bridges asserts that additional instruction was
necessary. Specifically, Bridges challenges the constitutionality of jury instruction 19, which informed the jury
of the elements of premeditation and deliberation. This instruction is virtually identical to the instruction given to
the jury, and upheld on appeal, in Kazalyn v. State, 108 Nev. 67, 75-76, 825 P.2d 578, 583-84 (1992),
prospectively modified in Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000).
In Byford, we recently reconsidered the Kazalyn instruction. While we did not conclude that use of the
instruction was error, we concluded that further instruction on the issue of deliberation would be preferable in
the future, and we set forth other instructions for future use. Byford, 116 Nev. at 234-37, 994 P.2d at 713- 15.
We affirmed Byford's conviction, concluding that the record contained sufficient evidence of both premeditation
and deliberation. Id. at 233-34, 994 P.2d at 712-13.
__________

6
Because the letter itself is partially illegible, the quotation is taken from the State's closing argument,
wherein the State specifically quoted passages from the letter.
........................................
Consistent with Byford, the jury instructions in the instant case do not constitute reversible error. Bridges was
tried prior to our decision in Byford; consequently, additional instruction as articulated in that decision was not
required. Moreover, the evidence of premeditation and deliberation in this case is overwhelming.
Similarly, the evidence of first degree murder under a felony murder theory is overwhelming; consequently,
there is a valid independent basis to uphold the jury's verdict. The felony murder theory was also charged by the
State and presented to the jury. The jury found Bridges guilty of the first degree kidnapping of Blatchford,
which, as alleged in the information read to the jury, required proof that the kidnapping was for the purpose of
committing murder. The jury's finding of kidnapping suggests that the jury agreed that Bridges was guilty of first
degree felony murder under the facts presented here.
[Headnote 7]
Third, Bridges claims that the State improperly commented on Bridges' failure to testify. Again, Bridges
failed to properly preserve this issue for review by making an appropriate objection. In the context of alleged
prosecutorial misconduct that has not been preserved for review, only plain or patently prejudicial error will
be considered. See Riker v. State, 111 Nev. 1316, 1328, 905 P.2d 706, 713 (1995).
The allegedly improper comment occurred during Bridges' closing argument:
THE DEFENDANT: . . . . A lot of people would say I was trying to avoid an altercation, and he came
across with his arm, he swung out and that's when
MR. WALL: Judge, I'm going to object. This is testimony. If he would like to be sworn, he had the
opportunity to do that.
The court sustained the prosecutor's objection to the extent that Bridges' argument was not based on the
evidence. Bridges asserts that the prosecutor's remark was a direct comment on Bridges' failure to testify.
Bridges further claims that reversal is required even if this court construes the remark as an indirect comment on
his failure to testify.
[Headnotes 8, 9]
If the remark is construed as a direct comment on Bridges' failure to testify, it would violate Bridges'
constitutional right against self-incrimination. See Harkness v. State, 107 Nev. 800, 803, 820 P.2d 759, 761
(1991). Even if the remark was an indirect reference, it would be impermissible if the language used was
manifestly intended to be or was of such a character that the jury would naturally and necessarily take it to be
comment on the defendant's failure to testify.
........................................
defendant's failure to testify.' See id. (quoting United States v. Lyon, 397 F.2d 505, 509 (7th Cir. 1968)).
[Headnotes 10, 11]
The context of the prosecutor's comment must be taken into account in determining whether a defendant
should be afforded relief. A prosecutor's comments should be viewed in context, and a criminal conviction is
not to be lightly overturned on the basis of a prosecutor's comments standing alone . . . .' Knight v. State, 116
Nev. 140, 144-45, 993 P.2d 67, 71 (2000) (quoting United States v. Young, 470 U.S. 1, 11 (1985)). Indeed,
where the prosecutor's reference to the defendant's opportunity to testify is a fair response to a claim made by
defendant or his counsel, there is no constitutional violation. United States v. Robinson, 485 U.S. 25, 32
(1988).
Here, the State did comment on Bridges' opportunity to testify, however the State did not ask the jury to
draw any impermissible inference or otherwise negatively comment on Bridges' failure to testify. Rather, the
State's objection was directed at what the State perceived was an improper attempt by Bridges to testify in his
closing argument. Further, prior to the prosecutor's comment at issue, the court permitted Bridges to explain,
over the State's objection, why he did not testify. Since Bridges himself had already made an issue of his failure
to testify, any prejudice from the State's reference was substantially diminished.
Accordingly, we conclude that Bridges has failed to demonstrate prejudicial error such that relief would be
warranted, notwithstanding his failure to object. Although the prosecutor should have phrased his objection
without referring to Bridges' opportunity to testify, we conclude that the prosecutor's comments in this case were
not patently prejudicial. See Riker, 111 Nev. at 1328, 905 P.2d at 713; see also Chapman v. California, 386
U.S. 18, 21-26 (1967) (applying harmless error analysis where prosecutor improperly commented on defendant's
failure to testify), cited in McNelton v. State, 111 Nev. 900, 904, 900 P.2d 934, 936 (1995).
[Headnotes 12-14]
Bridges claims that insufficient evidence supports his conviction for first degree kidnapping with the use of a
deadly weapon and the jury's finding of the kidnapping aggravating circumstance. When this court reviews the
evidence supporting a jury's verdict, the question is whether the jury, acting reasonably, could have been
convinced of the defendant's guilt beyond a reasonable doubt by the evidence it had a right to consider. See
Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980).
........................................
[Headnote 15]
Here, there is ample evidence to demonstrate that Bridges committed first degree kidnapping and the
kidnapping aggravating circumstance. Laurie's testimony shows that Bridges used a ruse to lure Blatchford to a
remote location for the purpose of killing him and that Bridges actually killed Blatchford in the course of that
kidnapping. The physical evidence, including the items found in Bridges' car, supports this conclusion. A
kidnapping does not require force or restraint and may be shown, for example, where the defendant willfully
inveigles, entices, decoys, abducts, . . . or carries away a person by any means whatsoever. NRS 200.310.
Jury instruction on statutory aggravating circumstance
[Headnote 16]
Bridges asserts that the jury was erroneously instructed, at the penalty phase, on the statutory aggravating
circumstance. Jury instruction No. 11 indicated that Bridges was charged with a single aggravating
circumstance: The murder was committed while the person was engaged in the commission of or an attempt to
commit Kidnapping with Use of a Deadly Weapon. Bridges notes that the instruction omitted the requirement
of first degree kidnapping, pursuant to NRS 200.033(4).
7
The special verdict form was consistent with the
erroneous instruction. According to Bridges, the error was prejudicial because the jury could have believed that
evidence of both the second degree kidnapping of Laurie and the first degree kidnapping of Blatchford could be
considered as part of the statutory aggravating circumstance.
[Headnote 17]
We conclude that Bridges is not entitled to relief notwithstanding the erroneous instruction. [T]he Federal
Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an
invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating
evidence or by harmless-error review . . . . Clemons v. Mississippi, 494 U.S. 738, 741 (1990); see also Pertgen
v. State, 110 Nev. 554, 563, 875 P.2d 361, 366 (1994).
__________

7
NRS 200.033(4) provides, in pertinent part, that it is an aggravating circumstance where:
The murder was committed while the person was engaged, alone or with others, in the commission of
or an attempt to commit or flight after committing or attempting to commit, any . . . kidnaping in the first
degree, and the person charged:
(a) Killed or attempted to kill the person murdered; or
(b) Knew or had reason to know that life would be taken or lethal force used.
........................................
First, we emphasize that there is no doubt concerning the propriety of the jury's finding of the aggravating
circumstance, notwithstanding the erroneous instruction. Here, the jury had previously found Bridges guilty of
the first degree kidnapping of Blatchford. Given the jury's prior determination of first degree kidnapping and the
fact that Blatchford was killed in the course of that kidnapping, there is no doubt that the kidnapping aggravating
circumstance applied.
Thus, the only question is whether the error in the instruction resulted in an erroneous weighing of the
aggravating versus mitigating circumstances. Bridges claims that the erroneous instruction might have caused the
jury to place greater weight on the aggravating circumstance than it might have otherwise done because the jury
could have improperly considered the second degree kidnapping of Laurie as part of the aggravating
circumstance.
We reject Bridges' argument and conclude that the jury's weighing of the aggravating and mitigating
circumstances could not have been tainted, under the unique circumstances of this case. As the State
persuasively argued before the jury and on appeal, there is no compelling evidence in mitigation in this case.
Thus, we are not persuaded that any error tainted the balancing process.
To foreclose possible future litigation, however, we have elected to explicitly reweigh the aggravating and
mitigating circumstances based upon our independent review of the trial record, and to detail our determination.
Here, we must reweigh any mitigating circumstances versus the valid aggravating circumstance insofar as it is
limited to first degree kidnapping. See Pertgen, 110 Nev. at 563, 875 P.2d at 366 (Reweighing involves
disregarding the invalid aggravating circumstances and reweighing the remaining permissible aggravating and
mitigating circumstances.). None of the specific statutory mitigating circumstances apply. See NRS 200.035.
Bridges had a significant prior criminal history, and he was thirty-four years old at the time of the offense. See
NRS 200.035(1), (6). Bridges acted alone, and there was no compelling evidence presented at trial that he acted
under duress or extreme mental or emotional disturbance. See NRS 200.035(2)-(5). Nor do we perceive any
other non-statutory mitigating circumstance. See NRS 200.035(7). Accordingly, we conclude that there is no
mitigating circumstance or circumstances sufficient to outweigh the single valid aggravating circumstance.
State's rebuttal closing argument during penalty phase
[Headnote 18]
Bridges claims that, in the rebuttal closing argument during the penalty phase, prosecutor Guymon
improperly and repeatedly used terms such as "aggravating" and "aggravation" to refer to
evidence that was not relevant to the statutory aggravating circumstance.
........................................
used terms such as aggravating and aggravation to refer to evidence that was not relevant to the statutory
aggravating circumstance. According to Bridges, Guymon's repeated references suggest that these references
were not inadvertent.
8
Bridges argues that the references were misleading, given Guymon's comparison of this
evidence to the lack of mitigating evidence, his reference to the kidnapping aggravating circumstance, and
asserted ambiguity in the jury instructions.
[Headnote 19]
Although Bridges did not object to Guymon's references, it is essential that we carefully review his claim,
given the serious impropriety alleged. NRS 177.055(2)(c) mandates that we consider whether the death penalty
has been imposed under the influence of passion, prejudice or any arbitrary factor. Because the term
aggravating circumstance is a term of art, misleading references to aggravation or aggravating could taint
the jury's weighing of the legitimate aggravating and mitigating circumstances, resulting in the arbitrary
imposition of the death penalty. Further, this court has indicated greater flexibility in considering issues of
prosecutorial misconduct that were not preserved for appeal where a defendant's life is at stake. Emmons v.
State, 107 Nev. 53, 61, 807 P.2d 718, 723 (1991).
Although we strongly criticize prosecutor Guymon's characterization of the evidence in terms of aggravation
and aggravating,
9
we have carefully considered the issue and determine that the error was harmless under the
unique facts and circumstances of this case. Three factors support our conclusion. First, the jury instructions
reflected that only one aggravating circumstance was actually alleged, and the special verdict form itself only
included one aggravating circumstance.
10
Second, in the State's original closing remarks,
__________

8
For example, Guymon commented, Is there aggravation when the script writer to this somehow says, I'm
going to take it upon myself now to bury this body and left the body interred in the ground, somehow denying
the family of a decent burial . . . ? Guymon further commented near the conclusion of the rebuttal, The law
permits you to send a message with this case that we, the jury, find that there is great aggravation in you, Mr.
Bridges's conduct, for your repeated criminal conduct, for your repeated placing the blame on someone else, for
you . . . failing to take responsibility for your conduct; and for the very fact that there is an aggravator of first
degree kidnapping with use of a deadly weapon . . . .

9
We caution prosecutors to avoid references that might mislead the jury concerning the essential process for
determining the appropriate penalty in a death penalty case. Although we elect not to sanction prosecutor
Guymon in this case, we will not hesitate to impose sanctions in future cases involving similar conduct.

10
Jury instruction No. 11 provided:
You are instructed that the following factors are circumstances by which Murder of the First Degree may
be aggravated:
........................................
closing remarks, prosecutor Wall had carefully guided the jury through the steps for determining the appropriate
penalty, including the weighing of the alleged aggravating circumstance versus any mitigating circumstances.
Prosecutor Wall explained that there's only one aggravating circumstance alleged, that the murder occurred
during a kidnapping. Third and finally, the weighing process could not have been tainted because there was little
to weigh on the side of mitigation. As discussed above, the aggravating circumstance unequivocally outweighed
any mitigating circumstances.
Bridges' failure to present evidence of personality disorder
Bridges claims that the penalty determination was tainted because the jury did not hear evidence that he had
narcissistic personality disorder. Further, Bridges asserts that the disorder itself precluded him from making a
rational decision not to introduce this evidence. Three experts evaluated Bridges. All three found evidence of a
narcissistic personality, although they all found him to be competent.
11

Bridges argues that the personality disorder was a mitigating factor, and that it was important that the jury
be presented with all mitigating evidence. Bridges attempts to analogize his failure to present the potentially
mitigating evidence to the situation where trial counsel does not present mitigating evidence because he or she
is unaware of the evidence. In this regard, Bridges relies on Kirksey v. State, 112 Nev. 980, 923 P.2d 1102
(1996). In Kirksey, this court commented "that failure to adequately investigate the
availability of mitigating evidence or to advise the defendant regarding its significance
might undermine the defendant's decision not to present mitigating evidence and thereby
support a claim of ineffective assistance."
__________
1. The murder was committed while the person was engaged in the commission of or an attempt to
commit Kidnapping With Use of a Deadly Weapon.
Nevertheless, Bridges claims the instructions were ambiguous because they included references to aggravating
circumstances. For example, the instructions further indicated that the jury had to find at least one of the
aggravating circumstances alleged in order to consider the death penalty, and that the jury had to balance
any mitigating circumstances against one or more aggravating circumstances. Bridges asserts that the jury
should have been specifically instructed that kidnapping was the only aggravating circumstance to consider. We
encourage the district courts and the parties to carefully tailor the jury instructions to the case at issue.
However, we conclude that the jury could not have been misled by the instructions in the instant case.

11
Psychologist Lewis M. Etcoff indicated that Bridges felt superior to the human race and that Bridges
believed that there was very little wrong with him. Etcoff explained that Bridges knew the difference between
right and wrong but that he could not easily conform to right and wrong because a narcissist places himself
above the right and wrongs of society. Psychiatrist Jack A. Jurasky stated that persons with the personality
disorder might act impulsively or rashly, although they know the difference between right and wrong. Jurasky
explained that Bridges was caught up in very powerful emotions. Finally, psychologist Marv A. Glovinsky
stated that Bridges' thinking pattern was self-centered, grandiose, and characterized by a sense of
entitlement.
........................................
Kirksey, this court commented that failure to adequately investigate the availability of mitigating evidence or to
advise the defendant regarding its significance might undermine the defendant's decision not to present
mitigating evidence and thereby support a claim of ineffective assistance. Id. at 996, 923 P.2d at 1112.
[Headnotes 20, 21]
Bridges' attempt to analogize the instant matter to a case involving counsel is unpersuasive. Because Bridges
represented himself, he cannot complain that his own representation constituted ineffective counsel. See Faretta
v. California, 422 U.S. 806, 835 n.46 (1975). Nor has Bridges presented any persuasive argument that he should
not have been permitted to represent himself. As noted above, three experts determined that Bridges was
competent. Moreover, the trial court carefully canvassed Bridges pursuant to Faretta and admonished him
concerning the dangers of self-representation. Accordingly, we are not persuaded that Bridges' decision to
represent himself and to waive his right to counsel was anything but a constitutionally valid, knowing, voluntary,
and intelligent decision. See id. at 835-36.
[Headnote 22]
Further, the State persuasively argues that to find error here would undermine Faretta because it would
suggest that a defendant with narcissistic personality disorder who is otherwise competent and capable of
representing himself or herself could not do so in all circumstances. At oral argument, Bridges' counsel conceded
that they were unable to cite to any case law recognizing an exception to Faretta under the circumstances
presented here. We decline Bridges' invitation to carve out an exception to Faretta. We reaffirm our own prior
decision that a criminal defendant is entitled to represent himself in whatever manner he wishes, whether that be
by introducing mitigating evidence, by not introducing mitigating evidence or even by actively seeking the death
penalty. Colwell v. State, 112 Nev. 807, 811, 919 P.2d 403, 406 (1996).
Whether the death penalty is excessive
[Headnote 23]
Finally, Bridges argues that the death penalty is excessive given the crime and the defendant. We disagree.
Bridges' wife, Laurie, left him several months before he tracked her down, confronted her, and eventually killed
her lover. The evidence reflects that Bridges behaved in a calculated fashion, both in his extensive preparation
for the killing and in the commission of the killing itself. The killing was not immediately preceded by a dispute
or altercation. After shooting Blatchford, Bridges treated the dying man with extreme callousness. Indeed, he
beat both Blatchford and Laurie with his gun after the shooting.
........................................
and Laurie with his gun after the shooting. He had a prior criminal history, although it apparently did not involve
violent offenses. He placed blame on other individuals, including Laurie.
Mandatory review
NRS 177.055(2) requires this court to review every death sentence and consider in addition to any issues
raised on appeal:
We have fully discussed issues pertinent to NRS 177.055(2)(b) and (d) in the context of Bridges' claims. The
only remaining issue is whether the death sentence was imposed under the influence of passion, prejudice or
any arbitrary factor. See NRS 177.055(2)(c). Having reviewed the record, we conclude that it was not.
In so ruling, we emphasize that prosecutor Wall carefully explained to the jury the requisite steps of the
sentencing determination. Wall did not rely on Bridges' failure to present mitigating evidence at the penalty
phase but instead discussed each of the possible statutory mitigating circumstances and explained the reason for
the State's assertion that the circumstance was not present. Although prosecutor Guymon's comments concerning
aggravation and aggravating were inappropriate, we reiterate our conclusion that they did not taint the
penalty determination under the unique facts and circumstances of this case.
CONCLUSION
We affirm Bridges' conviction and sentence of death.
____________
116 Nev. 770, 770 (2000) Garner v. State
TYRONE LAFAYETTE GARNER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 34569
August 23, 2000 6 P.3d 1013
This is an appeal from a judgment of conviction, pursuant to a jury trial, of one count each of conspiracy to
commit robbery, burglary while in possession of a firearm, robbery with use of a deadly weapon, first-degree
kidnapping with use of a deadly weapon, and first-degree murder with use of a deadly weapon.
........................................
Eighth Judicial District Court, Clark County; Michael L. Douglas, Judge.
Defendant was convicted in the district court of conspiracy to commit robbery, burglary while in possession
of a firearm, robbery with use of a deadly weapon, first-degree kidnapping with use of a deadly weapon, and
first-degree murder with use of a deadly weapon. Defendant appealed. The supreme court held that: (1) evidence
was sufficient to support convictions for conspiracy to commit robbery, aiding and abetting burglary, and aiding
and abetting robbery; (2) defendant was liable under felony-murder rule for murder his accomplice perpetrated
in course of robbery; (3) defendant's status as a co-conspirator and accomplice to robbery established his liability
for kidnapping; (4) even if evidence of and reference to defendant's attempts to negotiate some kind of
arrangement for clemency with police were erroneous, such error was harmless; (5) trial court's error in giving
improper instruction on involuntary intoxication was harmless; (6) trial court correctly instructed jury on
conspiracy; and (7) giving of Kazalyn instruction, which did not fully define willful, deliberate, and
premeditated did not constitute plain or constitutional error.
Affirmed.
1. Criminal Law.
In reviewing the evidence supporting a jury's verdict, supreme court must determine whether the jury, acting reasonably,
could have been convinced beyond a reasonable doubt of the defendant's guilt by the competent evidence.
2. Criminal Law.
Where conflicting testimony is presented, the jury determines what weight and credibility to give it.
3. Criminal Law.
In reviewing the evidence supporting a jury's verdict, the relevant inquiry for supreme court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.
4. Conspiracy.
Conspiracy is an agreement between two or more persons for an unlawful purpose. NRS 199.490.
5. Conspiracy.
Conspiracy is seldom demonstrated by direct proof and is usually established by inference from the parties' conduct. NRS
199.490.
........................................
6. Conspiracy.
Evidence of a coordinated series of acts furthering the underlying offense is sufficient to infer the existence of an agreement and
support a conspiracy conviction; however, absent an agreement to cooperate in achieving the purpose of a conspiracy, mere knowledge
of, acquiescence in, or approval of that purpose does not make one a party to conspiracy. NRS 199.490.
7. Conspiracy.
Evidence of defendant's actions after robbery was relevant to question of whether defendant was guilty of conspiracy to commit
robbery.
8. Criminal Law.
Conduct occurring after a crime may be relevant to proving the commission of the crime.
9. Criminal Law.
Evidence of flight is circumstantial evidence which can be considered with other evidence in determining guilt.
10. Burglary; Conspiracy; Robbery.
Evidence was sufficient to support convictions for conspiracy to commit robbery, aiding and abetting burglary, and aiding and
abetting robbery. Defendant admitted to police that he knew his accomplice had a gun when accomplice entered bar, defendant parked
car outside bar that allowed him to act as lookout and drive away quickly, defendant had no money or drugs before crimes and had a
large amount of both soon afterwards, defendant attempted to evade police, and just a few hours after crimes, defendant had possession
of and authority over gun accomplice had in his possession when he entered bar.
11. Homicide.
Defendant, by conspiring with accomplice to commit robbery, was liable under felony-murder rule for murder his accomplice
perpetrated in the course of the robbery.
12. Kidnapping.
Defendant's status as a co-conspirator and accomplice to robbery established his liability for kidnapping. Evidence established that
defendant entered into a plan or scheme with accomplice to commit robbery and aided accomplice in committing robbery, and thus
resulting kidnapping was not attenuated from defendant's criminal intent and actions in aid of the robbery, rather, it was in the ordinary
course of things a natural or probable consequence of the planned robbery.
13. Criminal Law.
Rule that a person who enters into a common plan or scheme but does not intend a particular crime committed by the principal can
be liable for the crime if, in the ordinary course of things, the crime was the natural or probable consequence of such common plan or
scheme does not constitute a per se basis for holding an accomplice to one crime liable for a related crime by the principal simply
because the related crime was foreseeable.
14. Criminal Law.
Where the relationship between the defendant's acts and the charged crime is too attenuated, the State must provide some showing
of specific intent to aid in, or specific knowledge of, the crime charged.
15. Criminal Law.
To determine if a discussion should be characterized as a plea negotiation, supreme court considers whether the accused had a
subjective expectation of negotiating a plea at the time of discussion and whether that expectation was reasonable.
........................................
16. Criminal Law.
Even if State's presentation of evidence of and State's reference to defendant's attempts to negotiate some kind of arrangement for
clemency with police at start of each of his two police interviews were erroneous, such error was harmless, in prosecution for
conspiracy to commit robbery, murder, and other offenses. Defendant made no substantive admissions during his entreaties and thus
evidence of these attempts to negotiate was of little significance, defendant's crucial admissions came only later after any alleged
negotiations had ended, and defendant testified as to his version of events. NRS 48.125(1).
17. Criminal Law.
When an appellant fails to raise an issue below and the asserted error is neither plain nor constitutional in magnitude, supreme
court need not consider it on appeal.
18. Criminal Law.
To be plain, an error must be so unmistakable that it is apparent from a casual inspection of the record.
19. Criminal Law.
Trial court's instruction on involuntary intoxication, which improperly implied that defense had burden to disprove specific intent
element of State's case, impermissibly shifted burden of proof of specific intent to defendant, in prosecution for conspiracy to commit
robbery, first-degree murder with a deadly weapon, and other offenses. NRS 193.220.
20. Criminal Law.
Trial court's error in giving improper instruction on involuntary intoxication was harmless, in prosecution for conspiracy to
commit robbery, first-degree murder with a deadly weapon and other offenses. Instruction had no practical impact on jury's
deliberations, as defendant never presented a defense of lack of specific intent due to involuntary intoxication, and defendant was not
entitled to involuntary intoxication instruction, as he did not present evidence on effect that his consumption of drugs had on his
mental state. NRS 193.220.
21. Criminal Law.
Supreme court would review defendant's claim that instruction on conspiracy was erroneous for plain or constitutional error, in
prosecution for conspiracy to commit robbery and other offenses, where defendant failed to object to instruction at trial, and defense
counsel told trial court that instruction as a whole correctly instructed jury on conspiracy.
22. Conspiracy.
Trial court correctly instructed jury on conspiracy, in prosecution for conspiracy to commit robbery and other offenses, where
instructions stated in part that no express or formal agreement was required, and that conspiracy was an agreement between two or
more persons to commit any criminal or unlawful act. NRS 199.490.
23. Criminal Law.
Giving of Kazalyn instruction, which did not fully define willful, deliberate, and premeditated, did not constitute plain or
constitutional error, in prosecution for first-degree murder with a deadly weapon and other offenses.
24. Criminal Law.
Defendant failed to preserve for appeal absent showing of plain or constitutional error issue of whether use of Kazalyn instruction
at trial, which did not fully define willful, deliberate, and premeditated, required reversal of his conviction for first-degree murder
with use of a deadly weapon, where defendant failed to object to instruction at trial.
........................................
25. Criminal Law.
A conviction becomes final when the judgment of conviction has been entered, the availability of appeal has been exhausted, and a
petition for certiorari to the United States Supreme Court has been denied or the time for such a petition has expired.
OPINION
1

Per Curiam:
Early in the morning on May 5, 1998, appellant Tyrone Lafayette Garner drove Charles Randolph to a bar
in Las Vegas. Randolph entered the bar, shot the bartender to death, and stole cash and video equipment. After
a jury trial, Garner was convicted of conspiring to commit robbery, first-degree murder with use of a deadly
weapon, and three other crimes. Garner contends that: there was insufficient evidence to convict him; the State
improperly commented on his attempt to negotiate a deal with police; and the jury instructions on voluntary
intoxication, conspiracy, and deliberation and premeditation were erroneous. This appeal also presents the
issue of how this court's recent decision, Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000), should apply to
convictions which are not final but were entered before Byford was decided.
FACTS
Just before midnight on May 4, 1998,
2
John Shivell started the graveyard shift as a security guard at Angel
Park Apartment complex in Las Vegas. The guard shack was at the front of the complex, and Doc Holliday's, a
bar, was immediately to the west. Shivell parked his car in the parking lot at Doc Holliday's where he could see
it from the guard shack. Around 1:00 a.m. (May 5), Shivell heard a sharp barking-type laugh coming from
two men who were approaching a car parked near his own. The men's car was facing the bar and had a view of
the bar's two entrances and the entrance to the parking lot. The man approaching the passenger side of the car
appeared to be stockier than the one on the driver side, and the two seemed to be conversing as they got in the
car. The car then started up, pulled away without its lights on, and went behind Doc Holliday's, where the lights
came on. The car turned south on Durango Drive and then east on Westcliff Drive,
__________

1
Pursuant to NRAP 34(f)(1), we have determined that oral argument is not warranted in this appeal. Also,
cause appearing we deny appellant's request, filed April 24, 2000, concerning publication of this opinion.

2
All dates relevant to the commission and investigation of the crimes in this case are in 1998.
........................................
car turned south on Durango Drive and then east on Westcliff Drive, passing by Shivell and the guard shack. He
identified it as an older model Cadillac. He saw two occupants, but thought there might have been a third
because there seemed to be a hump behind the driver. Shivell decided to call Doc Holliday's. He got no
answer, dialed again, and again got no answer. He then called the police, who arrived about ten minutes later.
Inside Doc Holliday's, Las Vegas Metropolitan Police found Shelly Lokken, the bartender, handcuffed and
lying face down in the bar's cooler with two gunshot wounds to the head. A deformed bullet and a 9-millimeter
cartridge case were on the floor of the cooler. The manager at Doc Holliday's found that the bar's security
videocassette recorder (VCR) and multiplexer were gone. (A multiplexer allows multiple views to be monitored
on a single screen.) Cash totaling $4,629.00 had been taken from the safe, cash register, and gaming drawer.
JoAnn McCarty was a major witness for the State. On the evening of May 4, she and other persons, including
Charles Randolph and appellant Garner, were smoking crack cocaine at a trailer in Las Vegas. Garner and
Randolph did not have money or cocaine so McCarty shared some of her own cocaine with them. Garner and
Randolph also got some cocaine on credit from another person, Jay, but when they asked for more, Jay refused.
About ten minutes after this refusal, Garner and Randolph left the trailer in Garner's Cadillac.
The two men returned to the trailer a couple of hours later. McCarty noticed that they were hyper. They
had also returned with crack cocaine and money. McCarty estimated that Randolph had a bag holding two
hundred to five hundred dollars' worth of cocaine. Garner had less, maybe two hundred dollars' worth. Garner
also had a lot of small bills of money, folded and tied with a rubber band. Randolph said he had got money from
his attorney and loaned some to Garner. According to McCarty, Garner just kept pulling it and putting it in his
pocket, pulling it out, putting it in, puttingyou know, like he had never had money before. It was just kind of
weird. Garner also asked if anyone there wanted a VCR.
McCarty and another woman then left with Garner and Randolph in Garner's Cadillac. They were getting
high and being loud when Garner said to quiet down because there was heat in the car. He told McCarty that
there was a gun at her feet. McCarty looked down and saw a white plastic bag with a gun in it. They then drove
to a motel, where Garner went in and registered while the other three waited at the car. He came back, wrapped
the bag holding the gun in a towel, took it upstairs to their motel room, and placed it behind the toilet tank.
McCarty testified that the four then got high, partied, had fun, just took showers, some got naked, a
few sexual activities."
........................................
showers, some got naked, a few sexual activities. Both men had lots of money, which they shared with the
women. Randolph even gave money to Garner. Randolph and McCarty prepared to go to the closest casino and
gamble, and he gave her two or three hundred dollars. Randolph never made it out the door with McCarty,
however. He looked kind of spooked so McCarty walked to the casino alone. She gambled for about an hour,
but when she returned, no one was in the motel room. McCarty then made her way back to the trailer. Garner
was there, but not Randolph, whom she did not see again.
McCarty and a friend, Gail Rancher, then left with Garner in his Cadillac to go to another motel. On the way,
Garner gave Rancher some money, and she bought more cocaine. They went to a Best Western, where Garner
registered. They then went up to the room, used cocaine, and engaged in sexual activities. Around noon (May 5),
the three were watching television in the room when there was a news report of a murder at a bar involving a
Cadillac that looked like Garner's. Garner really tuned in and lost his interest in getting high. He immediately
jumped up, got dressed, said that he was going to get his car painted, and left. He came back after about half an
hour. The atmosphere had become weird for McCarty and Rancher. They went in the bathroom and discussed
how to leave. Garner was sitting on the bed, holding the phone. McCarty thought that she overheard Garner
saying something about our car' and the news, but she was not sure if he was speaking to anyone on the
phone. McCarty and Rancher told Garner, untruthfully, that McCarty was pregnant and feeling sick, and they left
the room. Because they had no money, they tried unsuccessfully to get Garner's room deposit from the motel
clerk. They then started to catch a bus, but returned to the front desk and told the clerk that they thought that
Garner was involved in the murder reported on the news. McCarty called Secret Witness from the front desk,
while the motel owner called the police. The police soon arrived.
A police officer spoke to McCarty and then went to the motel room and spoke to Garner. Garner admitted
that he owned a Cadillac but said that he had loaned it to a friend, who currently had it. Based on what McCarty
had told him, the officer thought that the car might be nearby so he went in search of it. He found it in a parking
lot about five blocks away.
A police detective arrived and interviewed Garner at the Best Western. Garner said that he had lent his car to
his friend Larry so that Larry could deliver some rock cocaine. He said that the night before he had lent the car
to someone named Charles, whose last name he did not know. Garner consented to a search of his motel room,
and the detective found $459.00 in small bills wrapped in a rubber band under the mattress. The detective also
found a set of keys to a GM car.
........................................
found a set of keys to a GM car. Garner admitted that the keys were to his car, but said he gave another set to
Larry. He also said that there was no way his car was involved in the Doc Holliday's crime, and he consented to
a search of his car whenever it was found.
A crime scene analyst processed Garner's car. He found the entire outside of the car, metal and windows, was
covered with an oily film that precluded processing the exterior for fingerprints. Inside the car he found a nearly
empty spray bottle of Armor All, the apparent source of the film. In the car's trunk he found a VCR and a
multiplexer. The VCR had a videotape in it, which was handed over to detectives. The trunk also held a plastic
grocery bag containing a 9-millimeter handgun wrapped in a chamois cloth. Forensic lab analysis later showed
that the handgun had fired the cartridge found at the murder scene.
According to Detective James Vaccaro's narrative at the trial, the surveillance videotape from Doc Holliday's
at the time of the murder showed the following. Lokken, the bartender, was working alone. A man, later
identified as Charles Randolph, entered and sat at the bar. (Lokken knew Randolph, who worked as a cook at the
establishment.) Randolph then stood up, pulled a handgun from his jacket, and leaped over the bar, confronting
Lokken. The two then went back towards the cooler. Randolph later emerged from the cooler area and went to
various parts of the bar, including the cash register, gaming drawers, and office.
Detectives tape-recorded interviews of Garner at the jail on May 5 and May 8.
3
At the beginning of the May
5 interview, Garner asked what guarantees he would get for his statement and said that he needed something
to work with too. A detective responded:
I will guarantee you that if we don't have any evidence that you were, had nothing to do with this robbery
and murder that we're talking about, and we don't have any evidence that you weren't in your car at the
time that this robbery and murder occurred, then we don't have any evidence to charge you with.
Garner asked for the guarantee in writing, but was persuaded to talk after the detectives pointed out their words
were being recorded.
Garner said he had been at the trailer smoking dope for a few days. The night before, he had loaned his car to
Randolph so that Randolph could sell some dope for him. Randolph returned after a couple of hours and
gave Garner fifty dollars.
__________

3
Garner was not read his rights under Miranda v. Arizona, 384 U.S. 436 (1966), before the interview on May
5. However, after Garner testified at the trial, the State introduced evidence of the interview for impeachment
purposes without objection.
........................................
a couple of hours and gave Garner fifty dollars. Garner then changed his story and said that Randolph had taken
the car because Garner owed Randolph money. Garner related that he went for a ride with Randolph. Garner
waited while Randolph went into an apartment and came out with a gun that looked like a 9-millimeter.
Randolph then dropped Garner back off at the trailer, and Garner did not know what happened after that. Garner
said he did not know how his car ended up where police found it, but then admitted he parked it there. When
asked what was in the car's trunk, Garner said he was scared to find out. Eventually, Garner admitted that he
had driven Randolph to Doc Holliday's without knowing what Randolph was going to do. Garner knew
Randolph had the gun and wanted to pick up some money at the bar, but Randolph had said he used to work at
the bar. Garner himself never went in the bar. Garner said that the gun and a VCR and other stuff from the bar
were in his car's trunk. He did not know about any cash from the bar. When Garner saw the TV news report
earlier that day, he realized what Randolph had done.
Before the May 8 interview, Garner was read his Miranda rights. Garner was concerned about what the
detectives were going to give him in return for his statement. He said that he wanted something from the district
attorney's office. And I'm doing all of this signing, you know, and I'm trying to be of help all I can, but I'm not
getting nothing in return, man. A detective responded that we can give you all the assurances that we can, but
only the district attorney could reduce to writing an agreement that Garner isn't going to go to jail for what
happened here.
Garner nevertheless again gave a statement. His story now remained that he drove Randolph to the bar, but
did not go in with Randolph and did not know what Randolph was going to do. The detective asked, He had the
gun before you guys went up there, right?
A: Yeah.
Q: To Doc Holliday's. And he stuck it in his pants or hid it on him somewhere?
A: I think he stuck it in his pants.
Q: Okay. So when he walked into Doc Holliday's, he had that gun with him?
A: I think he did. Yeah he did. He had to have, yeah, he put it in his pants. He put it in his pants.
Q: Okay. So, did that put a question in your mind about what was going on in there?
........................................
A: Now that you've mentioned it. But I didn't, I didn't . . . you know, cause he told me he worked at
this place so I wasn't really . . .
Garner testified at trial largely consistently with his last statements to police. He drove Randolph to Doc
Holliday's on the night of the murder but did not know what Randolph was going to do and did not realize what
had happened until he saw the news report. However, Garner's account regarding the murder weapon changed:
Randolph had had a gun earlier that night but traded it for drugs, and Garner did not realize that Randolph had a
different gun when they went to the bar.
In closing argument, the State called the jury's attention to Garner's desire for a deal when he spoke to
detectives. The State argued that it was inconsistent for Garner to claim that he had known nothing about
Randolph's plans but would provide information if he got a deal.
The jury found Garner guilty of conspiracy to commit robbery (count I), burglary while in possession of a
firearm (count II), robbery with use of a deadly weapon (count III), first-degree kidnapping with use of a deadly
weapon (count IV), and first-degree murder with use of a deadly weapon (count V). The district court sentenced
him to prison terms of: 16 to 72 months on count I; 40 to 180 months on count II, concurrent to count I; 72 to
180 months plus a consecutive term of 72 to 180 months on count III, concurrent to counts I and II; life with the
possibility of parole after five years plus a consecutive term of life with the possibility of parole after five years
on count IV, consecutive to counts III and V; and twenty to fifty years plus a consecutive term of twenty to fifty
years on count V, consecutive to count IV. Garner was also ordered to pay $5,041.34 in restitution.
DISCUSSION
Garner points out that there is no evidence that he directly committed the burglary, robbery, kidnapping, or
murder. He also contends that there is no evidence that he conspired with Randolph to commit the crimes or
that he knew Randolph's intentions.
[Headnotes 1-3]
In reviewing the evidence supporting a jury's verdict, this court must determine whether the jury, acting
reasonably, could have been convinced beyond a reasonable doubt of the defendant's guilt by the competent
evidence. Wilkins v. State, 96 Nev. 367, 374, 609 P.2d 309, 313 (1980). Where conflicting testimony is
presented, the jury determines what weight and credibility to give it. Bolden v. State, 97
Nev. 71, 624 P.2d 20 {19S1).
........................................
sented, the jury determines what weight and credibility to give it. Bolden v. State, 97 Nev. 71, 624 P.2d 20
(1981). The relevant inquiry for this court is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.' Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984) (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)).
The State charged Garner with conspiring with Randolph to commit robbery and aiding and abetting
Randolph in the commission of burglary, robbery, kidnapping, and murder. There appears to be no
comprehensive statutory definition of conspiracy. See NRS 199.480 (providing various penalties for conspiracy
to commit various crimes or acts); NRS 199.490 (providing that it is not necessary to prove any overt act was
done in pursuance of a conspiracy).
[Headnotes 4-6]
According to this court's case law, conspiracy is an agreement between two or more persons for an unlawful
purpose. Thomas v. State, 114 Nev. 1127, 1143, 967 P.2d 1111, 1122 (1998), cert. denied, 120 S. Ct. 85
(1999). Conspiracy is seldom demonstrated by direct proof and is usually established by inference from the
parties' conduct. Id. Evidence of a coordinated series of acts furthering the underlying offense is sufficient to
infer the existence of an agreement and support a conspiracy conviction. Id. However, absent an agreement to
cooperate in achieving the purpose of a conspiracy, mere knowledge of, acquiescence in, or approval of that
purpose does not make one a party to conspiracy. Doyle v. State, 112 Nev. 879, 894, 921 P.2d 901, 911 (1996).
We conclude that the evidence here was sufficient for the jury to reasonably infer that Garner had agreed to aid
Randolph in committing the robbery.
[Headnotes 7-9]
As an initial issue, to prove conspiracy the State relied in part on evidence of matters that occurred after the
robbery, but Garner contends that such evidence is not relevant to prove his intentions before the robbery. We
reject this contention. Evidence is relevant if it has any tendency to make the existence of any fact that is of
consequence to the determination of the action more or less probable than it would be without the evidence.
NRS 48.015. Conduct occurring after a crime may be relevant to proving the commission of the crime. For
example, evidence of flight is circumstantial evidence which can be considered with other evidence in
determining guilt. Maresca v. State, 103 Nev. 669, 674, 748 P.2d 3, 6-7 (1987). Some of Garner's actions after
the robbery are very relevant to the question of conspiracy.
........................................
[Headnote 10]
Viewed in the light most favorable to the prosecution, the record shows the following. On the night of the
crimes, Garner and Randolph were together at a trailer with others smoking crack cocaine. Neither had money or
drugs of their own. Soon after they were refused further cocaine on credit, they left together. Garner drove
Randolph to a location where Randolph obtained a 9-millimeter handgun. Around 1:00 a.m., Garner drove
Randolph to Doc Holliday's and backed his car into a parking space outside the bar. Randolph entered the bar,
carrying the gun, and Garner knew that Randolph had the gun. Garner waited in the car, which faced the bar and
had a view of the bar's two entrances and the entrance to the parking lot. Randolph later came out of the bar
carrying a VCR, a multiplexer, and a large amount of cash. The video equipment was placed on the back seat.
Garner drove away behind the bar before turning on the car's headlights. Upon returning to the trailer, Garner
helped put the video equipment in the trunk. By this time, he and Randolph had acquired several hundred
dollars' worth of cocaine. They also had hundreds of dollars in cash, and Garner repeatedly handled a bundle of
small-denomination bills. Driving to the first motel, Garner told two women passengers that there was a gun in
the car. At the motel, Garner took the gun from the car and hid it in the motel room. Garner and Randolph
displayed and shared more money with the two women. At the second motel, Garner's demeanor changed
dramatically when the TV news reported a murder at Doc Holliday's involving a Cadillac like his own. He
immediately dressed, said that he was going to have his car painted, and left. He drove his car about five blocks
and parked it. Garner completely covered the car's exterior with a film of Armor All before police found it later
that afternoon. After Garner returned to the motel, he talked to someone on the phone regarding the news report
and his car. When police questioned him in the case, Garner repeatedly lied to them, changing his story several
times.
Some of this evidence is ambiguous, i.e., consistent both with Garner's claim that he drove to the bar unaware
of Randolph's criminal intentions and with the State's theory that he conspired with Randolph. However,
considered as a whole the evidence is highly incriminating and more consistent with the State's theory. For
example, Garner admitted to police (but not at trial) that he knew Randolph had a gun when Randolph entered
the bar, and Garner parked the car in a location and manner that allowed him to act as a lookout and drive away
quickly. Garner had no money or drugs before the crimes and had a large amount of both soon afterwards. If he
had not agreed to assist Randolph in the crimes, there is no apparent reason why Randolph would share the
criminal gains so generously with him. Garner's reactions to the news report are also more consistent
with a concern to conceal his involvement with the crimes than with surprise at realizing
that Randolph had committed the crimes.
........................................
report are also more consistent with a concern to conceal his involvement with the crimes than with surprise at
realizing that Randolph had committed the crimes. And Garner's claim that he suspected nothing until the news
report is unconvincing; his repeated evasions with police also reflect a consciousness of guilt.
One piece of evidence particularly undermines Garner's claim of ignorant innocencehis control over the
handgun at the first motel. His possession of and authority over the gun just a few hours after the crimes at Doc
Holliday's are completely inconsistent with his claim that he had nothing to do with the crimes and did not even
know that Randolph had a gun at the scene of the killing.
This evidence was sufficient to prove the conspiracy charge, i.e., sufficient for the jury to infer that Garner
agreed to drive Randolph to and from Doc Holliday's and act as his lookout so that Randolph could commit a
robbery there. The evidence also was sufficient to prove that Garner aided and abetted Randolph's commission
of the robbery and burglary. Aiding and abetting the commission of an offense is treated and punished the same
as directly committing the offense. See NRS 195.020.
[Headnote 11]
There is no direct evidence that Garner intended or agreed that Lokken be kidnapped or murdered.
Nevertheless, under the felony-murder rule, by conspiring to commit robbery Garner is liable for the murder
perpetrated in the course of the robbery. See McKinney v. Sheriff, 93 Nev. 70, 72, 560 P.2d 151, 152 (1977);
State v. Beck, 42 Nev. 209, 213, 174 P. 714, 715 (1918); cf. NRS 200.030(1)(b).
[Headnotes 12-14]
We conclude that under the circumstances of this case Garner's status as a conspirator and accomplice
establishes his liability for the kidnapping as well. This court has held that when a person enters into a common
plan or scheme but does not intend a particular crime committed by the principal, the person is liable for the
crime if in the ordinary course of things [the crime] was the natural or probable consequence of such common
plan or scheme. See State v. Cushing, 61 Nev. 132, 148, 120 P.2d 208, 216 (1941). This rule does not
constitute a per se basis for holding an accomplice to one crime liable for a related crime by the principal simply
because the related crime was foreseeable. See United States v. Greer, 467 F.2d 1064, 1068-69 (7th Cir. 1972).
To do so would be to base criminal liability only on a showing of negligence rather than criminal intent. Id. at
1069. Where the relationship between the defendant's acts and the charged crime is too attenuated, the State
must provide some showing of specific intent to aid in, or specific knowledge of, the crime charged. Id.
........................................
See also Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 6.8(b), at 590-91 (2d ed. 1986). Here, the
evidence established that Garner entered into a plan or scheme with Randolph to commit robbery and aided
Randolph in committing the crime. We conclude that the resulting kidnapping was not attenuated from Garner's
criminal intent and actions in aid of the robbery; rather, it was in the ordinary course of things a natural or
probable consequence of the planned robbery. Thus, Garner properly may be held liable for it.
The evidence was sufficient to support the judgment of conviction.
Evidence of and comment on appellant's attempt to negotiate with police
Garner claims that the State violated NRS 48.125 when it presented evidence of and commented on his
attempts to negotiate the charges against him during the interviews on May 5 and May 8. Garner challenges
only the admission of his remarks seeking a deal at the beginning of each interview and the State's references to
those remarks. He does not challenge the numerous substantive admissions which he made later in both
interviews. Thus he tacitly concedes that his attempts to gain a deal were unsuccessful and the later admissions
were not part of any alleged negotiating process.
[Headnote 15]
NRS 48.125(1) provides: Evidence of a plea of guilty or guilty but mentally ill, later withdrawn, or of an
offer to plead guilty or guilty but mentally ill to the crime charged or any other crime is not admissible in a
criminal proceeding involving the person who made the plea or offer. To determine if a discussion should be
characterized as a plea negotiation, this court considers whether the accused had a subjective expectation of
negotiating a plea at the time of discussion and whether that expectation was reasonable. McKenna v. State,
101 Nev. 338, 344, 705 P.2d 614, 618 (1985).
[Headnotes 16-18]
Garner admits that he did not object at trial to the evidence or argument at issue. When an appellant fails to
raise an issue below and the asserted error is neither plain nor constitutional in magnitude, this court need not
consider it on appeal. Walch v. State, 112 Nev. 25, 34, 909 P.2d 1184, 1189 (1996). To be plain, an error must
be so unmistakable that it is apparent from a casual inspection of the record. Patterson v. State, 111 Nev. 1525,
1530, 907 P.2d 984, 987 (1995).
The record clearly shows that Garner tried to make some kind of arrangement for clemency with the police
at the start of each interview, but it is not clear that he actually expected to negotiate a plea.
........................................
interview, but it is not clear that he actually expected to negotiate a plea. Even if he did, given the detectives'
responses to his entreaties, it is not unmistakably apparent that such an expectation was reasonable. No plain
error occurred in this regard.
Garner nevertheless claims that under this court's case law his due process right to a fair trial was violated
and the error cannot be considered harmless. This court refused to deem violations of NRS 48.125(1) harmless
in two cases: Robinson v. State, 98 Nev. 202, 644 P.2d 514 (1982), and Mann v. State, 96 Nev. 62, 605 P.2d
209 (1980). In Robinson, the prosecutor intentionally elicited evidence of admissions made by the defendant
during plea negotiations and then remarked on it three times during closing argument. Robinson, 98 Nev. at 203,
644 P.2d at 514. This court concluded that the improper evidence was probably foremost in the jurors' minds
and it would be inconsistent with fair trial standards to hold the error harmless. Id. In Mann, the defendant chose
not to testify after the district court erroneously ruled that statements made by the defendant in entering a guilty
plea, later withdrawn, would be admissible for impeachment purposes. Mann, 96 Nev. at 64, 605 P.2d at 210. In
addition to violating the statute, the error implicated serious constitutional questions concerning the privilege
against compulsory self-incrimination. Id. at 66, 605 P.2d at 211. Since the district court's ruling prevented
appellant from testifying in his own behalf, the degree of prejudice arising from the error is unascertainable and
the normal rules of harmless and reversible error do not apply. Id. at 66-67, 605 P.2d at 211.
Here, by contrast, Garner made no substantive admissions during his entreaties; thus, the evidence of these
attempts to negotiate was of little significance. Garner's crucial admissions came only later after any alleged
negotiations had ended. Also, Garner was not prevented from testifying at trial; he took the stand and told the
jury his version of events. Therefore, even assuming that evidence of and reference to his attempts to negotiate
were error, any resulting prejudice was negligible and harmless beyond a reasonable doubt.
The instruction on voluntary intoxication and specific intent
[Headnote 19]
Garner asserts that the jury instruction on voluntary intoxication erroneously suggested that he had the
burden to prove that he lacked specific intent to commit the charged offenses. Garner is correct regarding the
error in the instruction, but the error was of no consequence since Garner was not entitled to the instruction in
the first place.
........................................
The district court rejected an instruction on voluntary intoxication offered by Garner based on NRS 193.220.
4
The State objected to instructing on voluntary intoxication, but provided the following instruction, which the
district court gave as Instruction No. 34.
No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal
by reason of his condition. In order to negate specific intent, the evidence must show not only the
defendant's consumption of intoxicants, but also the intoxicating effect of the substances imbibed and the
resultant effect on the mental state pertinent to the proceedings.
(Emphasis added.)
Much of the second sentence of Instruction No. 34 comes from Nevius v. State, 101 Nev. 238, 699 P.2d
1053 (1985), which concluded that the district court properly refused an instruction on voluntary intoxication.
In order for a defendant to obtain an instruction on voluntary intoxication as negating specific intent, the
evidence must show not only the defendant's consumption of intoxicants, but also the intoxicating effect
of the substances imbibed and the resultant effect on the mental state pertinent to the proceedings.
Nevius, 101 Nev. at 249, 699 P.2d at 1060 (emphasis added).
The language emphasized from Nevius refers to the burden of production a defendant must meet to obtain an
instruction. It does not set forth a burden of proof a defendant must meet to negate specific intent, as the
language emphasized in Instruction No. 34 suggests.
5
In effect, the instruction informed the jury that Garner
had to prove that he was so intoxicated that he lacked any requisite specific intent.
__________

4
NRS 193.220 provides:
No act committed by a person while in a state of insanity or voluntary intoxication shall be deemed
less criminal by reason of his condition, but whenever the actual existence of any particular purpose,
motive or intent is a necessary element to constitute a particular species or degree of crime, the fact of his
insanity or intoxication may be taken into consideration in determining the purpose, motive or intent.

5
This court has made this same distinction in regard to the defense of entrapment.
[T]he affirmative' nature of the [entrapment] defense merely requires the defendant to put forth evidence
of governmental instigation. Thereafter it is incumbent upon the state to demonstrate the defendant's
predisposition. Essentially, the defendant bears the burden of production on the first element, while the
prosecution subsequently bears the burden of proof on the second element.
Shrader v. State, 101 Nev. 499, 504, 706 P.2d 834, 837-38 (1985).
........................................
The State does not dispute Garner's claim that specific intent is an element of conspiracy, burglary, and
willful, deliberate, and premeditated murder. Nor does it dispute that the prosecution has the burden of proving
every element of a charged crime. The latter proposition is black letter law. E.g., Barone v. State, 109 Nev. 778,
780, 858 P.2d 27, 28 (1993). The State simply claims in a conclusory way that the instruction is not erroneous.
Alternatively, it argues that any error was harmless.
We conclude that the instruction was erroneous: it improperly implied that the defense had the burden to
disprove an element of the State's case. Cf. Barone, 109 Nev. at 780, 858 P.2d at 28 (holding that requiring
defendant to negate unlawfulness element of battery by proving self-defense violates due process by diluting
State's burden of proving every element of charged crime); Shrader v. State, 101 Nev. 499, 505, 706 P.2d 834,
838 (1985) (reversing where instruction on entrapment failed to inform jury that State ultimately bore burden of
proving that defendant had predisposition to commit crime).
[Headnote 20]
However, the error was harmless for two reasons. First, Garner never presented a defense of lack of specific
intent due to voluntary intoxication. Although Garner testified that he had gone without sleep, had consumed
drugs, and was not always thinking clearly, this evidence was offered to explain his actions and statements after
the crimes were reported and after police questioned him. His defense to the crimes remained simply that he
never knew what Randolph planned to do, and defense counsel in closing argument presented that same defense
and never mentioned or relied on voluntary intoxication. Therefore, we conclude that an incorrect instruction on
voluntary intoxication had no practical impact on the jury's deliberations.
Second, Garner was not entitled to an instruction on voluntary intoxication. As noted above, to obtain such
an instruction, the evidence must show not only the defendant's consumption of intoxicants, but also the
intoxicating effect of the substances imbibed and the resultant effect on the mental state pertinent to the
proceedings. Nevius, 101 Nev. at 249, 699 P.2d at 1060. Garner did not present evidence on the effect that his
consumption of drugs had on his mental state.
The instruction on conspiracy
Garner claims that the jury was improperly instructed regarding conspiracy. He challenges Instruction No.
8, which stated in part that to prove a conspiracy it was not necessary to show the making of an express or
formal agreement. This claim has no merit.
........................................
[Headnotes 21, 22]
First, Garner never objected to the instruction. On the contrary, defense counsel told the district court that the
instructions as a whole correctly instructed the jury on conspiracy. Therefore, Garner must show that the
instruction constituted plain or constitutional error. See Walch, 112 Nev. at 34, 909 P.2d at 1189. He cannot. He
claims that Instruction No. 8 told the jury that no agreement was necessary to establish conspiracy. This
misrepresents the instruction, which states that no express or formal agreement is required. Further, Garner
completely ignores Instruction No. 6, which told the jury: A conspiracy is an agreement between two or more
persons to commit any criminal or unlawful act.
The instruction on deliberation and premeditation
[Headnote 23]
In his opening brief, Garner argues that the jury was improperly instructed on the meaning of malice,
deliberation, and premeditation. Shortly after the opening brief was filed, this court entered its decision in
Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000). In his reply brief, Garner asserts that Byford requires
reversal of his conviction.
6

[Headnote 24]
Garner admits that he did not object at trial to this jury instruction. Therefore, this issue is not preserved for
consideration on appeal unless use of the instruction constituted plain or constitutional error.
7
See Walch, 112
Nev. at 34, 909 P.2d at 1189. Under Byford, there was no such error.
Our opinion in Byford concludes that the Kazalyn instruction does not fully define willful, deliberate, and
premeditated, and it provides other instructions for future usebut it does not hold that giving the Kazalyn
instruction constituted error, nor does it articulate any constitutional grounds for its decision. Byford, 116 Nev.
at 233-37, 994 P.2d at 712-15. Instead, the opinion relies on and gives effect to the relevant statutory
language in NRS 200.030{1){a).
__________

6
Jury instruction number 32 in this case defined premeditation as
a design, a determination to kill, distinctly formed in the mind at any moment before or at the time of the
killing.
murder.
This is the Kazalyn instruction considered by this court in Byford. Byford, 116 Nev. at 233, 994 P.2d at 712.

7
As explained in note 9 below, the practical effect of failing to preserve this issue is inconsequential.
........................................
and gives effect to the relevant statutory language in NRS 200.030(1)(a). Most pertinently, Byford states that
the Kazalyn instruction . . . do[es] not do full justice to the phrase willful, deliberate, and
premeditated.. . .
Because deliberation is a distinct element of mens rea for first-degree murder, we direct the district
courts to cease instructing juries that a killing resulting from premeditation is willful, deliberate, and
premeditated murder. Further, if a jury is instructed separately on the meaning of premeditation, it
should also be instructed on the meaning of deliberation.
Id. at 235-36, 994 P.2d at 714. The opinion then sets forth jury instructions for future use. Id. at 236-37, 994
P.2d at 714-15.
Thus, contrary to Garner's characterization of Byford, the opinion does not hold that giving the Kazalyn
instruction was error or violated any constitutional rights. Indeed, we affirmed the appellant's conviction in
Byford notwithstanding the use of the Kazalyn instruction. To the extent that our criticism of the Kazalyn
instruction in Byford means that the instruction was in effect to some degree erroneous, the error was not plain.
Before Byford was decided, our case law was divided on this issue, and several opinions of this court supported
use of the instruction. See id. at 233-35, 994 P.2d at 712-14.
Therefore, under Byford, no plain or constitutional error occurred here. Independently of Byford, however,
Garner argues that the Kazalyn instruction caused constitutional error. We are unpersuaded by his arguments and
conclude that giving the Kazalyn instruction was not constitutional error.
[Headnote 25]
Nevertheless, Garner maintains that Byford has retroactive effect and should be applied to convictions which
have not yet become final,
8
regardless of a failure to preserve the issue below. It is true that failure to apply a
newly declared constitutional rule to criminal cases pending on direct review violates basic norms of
constitutional adjudication. Griffith v. Kentucky, 479 U.S. 314, 322 (1987). But, as discussed above, Byford
does not invoke any constitutional mandate in directing that its new instructions be given in future cases, so there
is no constitutional requirement that this direction have any retroactive effect.
On the contrary, this court has generally held that new rules of law apply prospectively unless they are rules
of constitutional law, when they apply retroactively only under certain circumstances.
__________

8
A conviction becomes final when the judgment of conviction has been entered, the availability of appeal has
been exhausted, and a petition for certiorari to the United States Supreme Court has been denied or the time for
such a petition has expired. See Griffith v. Kentucky, 479 U.S. 314, 321 n.6 (1987).
........................................
when they apply retroactively only under certain circumstances. Bridgewater v. Warden, 109 Nev. 1159, 1161,
865 P.2d 1166, 1167 (1993); Gier v. District Court, 106 Nev. 208, 212, 789 P.2d 1245, 1248 (1990). Therefore,
the required use of the Byford instructions applies only prospectively. Thus, with convictions predating Byford,
neither the use of the Kazalyn instruction nor the failure to give instructions equivalent to those set forth in
Byford provides grounds for relief.
Garner failed to object to the use of the Kazalyn instruction at his trial and therefore failed to preserve this
issue for appeal absent a showing of plain or constitutional error. Use of the Kazalyn instruction in trials which
predate Byford does not constitute plain or constitutional error. Nor do the new instructions required by Byford
have any retroactive effect on convictions which are not yet final: the instructions are a new requirement with
prospective force only.
9

CONCLUSION
We affirm Garner's judgment of conviction and sentence.
__________

9
This does not mean, however, that the reasoning in Byford is unprecedented. Although Byford expressly
abandons some recent decisions of this court, it also relies on long-standing statutory language and other prior
decisions of this court in doing so. Basically, Byford interprets and clarifies the meaning of a preexisting statute
by resolving conflicting lines in prior case law. Therefore, its reasoning is not altogether new.
Because the rationale in Byford is not new and could have beenand in many cases wasargued in district
courts before Byford was decided, it is fair to say that the failure to object at trial means that the issue is not
preserved on appeal. However, in practical terms, the failure to preserve a challenge to the Kazalyn instruction is
inconsequential since use of the Kazalyn instruction is not grounds for reversal under Byford.
As this court receives appeals from post-conviction habeas petitioners citing Byford on this issue, it appears
that analogous treatment will be in order. The reasoning in Byford may be apposite to a post-conviction habeas
claim, but the claim will be procedurally barred unless a petitioner can show good cause for not raising the issue
beforeor for raising it againand prejudice. See NRS 34.810(3). In short, absent extraordinary circumstances,
nothing in Byford provides grounds for a successive habeas petition: anything new in the decision is not
retroactive, and anything not new will be procedurally barred from consideration.
____________
116 Nev. 790, 790 (2000) Matter of Parental Rights as to N.J.
In the Matter of TERMINATION OF PARENTAL RIGHTS AS TO N.J., a Minor. SAM Z. and TALIA Z.,
Appellants, v. HIKMET and RAJA J., and the MINOR CHILD N.J., Respondents.
No. 32436
August 24, 2000 8 P.3d 126
Appeal from orders of the district court denying a petition for termination of parental rights and denying a
motion for a new trial. Eighth Judicial District Court, Clark County; Cynthia Dianne Steel, Judge, and Robert E.
Gaston, Judge, Family Court Division.
In an adoption proceeding, the child's uncle and aunt petitioned to terminate the biological parents' parental
rights. The district court denied the petition and denied a motion for new trial. Uncle and aunt appealed. The
supreme court, Agosti, J., held that: (1) a best interests/parental fault standard applies to termination of parental
rights, under which the district court must always consider the best interests of the child in conjunction with a
finding of parental fault, overruling Matter of Parental Rights as to Carron, 114 Nev. 370, 956 P.2d 785 (1998),
Matter of Parental Rights as to Daniels, 114 Nev. 81, 953 P.2d 1 (1998), Cooley v. State, Dep't Hum. Res., 113
Nev. 1191, 946 P.2d 155 (1997), Matter of Parental Rights as to Gonzales, 113 Nev. 324, 933 P.2d 198 (1997),
Matter of Parental Rights as to Bow, 113 Nev. 141, 930 P.2d 1128 (1997), Matter of Parental Rights of
Weinper, 112 Nev. 710, 918 P.2d 325 (1996), Scalf v. State, Dep't of Human Resources, 106 Nev. 756, 801
P.2d 1359 (1990), Smith v. Smith, 102 Nev. 263, 720 P.2d 1219 (1986), Daly v. Daly, 102 Nev. 66, 715 P.2d
56 (1986), and McGuire v. Welfare Division, 101 Nev. 179, 697 P.2d 479 (1985); (2) trial court should have
applied statutory presumption of abandonment; and (3) letters written by biological father were not excluded
under the hearsay rule.
Jimmerson Hansen, Las Vegas, for Appellants.
Paul M. Gaudet, Las Vegas, for Respondents Hikmet and Raja J.
Kirby R. Wells & Associates and Allison L. Herr, Las Vegas, for Respondents.
1. Infants.
Termination of parental rights is an exercise of awesome power and is tantamount to imposition of a civil death penalty,
and, accordingly, the supreme court closely scrutinizes whether the district court properly preserved or terminated the
parental rights at issue.
........................................
Due process requires that clear and convincing evidence be established before terminating parental rights. U.S. Const. amend. 14.
3. Infants.
The supreme court will uphold orders terminating parental rights based on substantial evidence, and will not substitute its own
judgment for that of the district court.
4. Infants.
The district court always maintains subject matter jurisdiction over a properly filed petition to terminate parental rights.
5. Statutes.
6. Statutes.
No part of a statute should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can properly
be avoided.
7. Statutes.
Where a statute is clear on its face, a court may not go beyond the language of the statute in determining the legislature's intent.
8. Infants.
In all termination of parental rights proceedings, the best interests of the child must be the primary consideration. NRS 128.105.
9. Infants.
A best interests/parental fault standard applies to termination of parental rights, under which the district court must always
consider the best interests of the child in conjunction with a finding of parental fault; overruling Matter of Parental Rights as to Carron,
114 Nev. 370, 956 P.2d 785 (1998), Matter of Parental Rights as to Daniels, 114 Nev. 81, 953 P.2d 1 (1998), Cooley v. State, Dep't
Hum. Res., 113 Nev. 1191, 946 P.2d 155 (1997), Matter of Parental Rights as to Gonzales, 113 Nev. 324, 933 P.2d 198 (1997), Matter
of Parental Rights as to Bow, 113 Nev. 141, 930 P.2d 1128 (1997), Matter of Parental Rights of Weinper, 112 Nev. 710, 918 P.2d 325
(1996), Scalf v. State, Dep't of Human Resources, 106 Nev. 756, 801 P.2d 1359 (1990), Smith v. Smith, 102 Nev. 263, 720 P.2d 1219
(1986), Daly v. Daly, 102 Nev. 66, 715 P.2d 56 (1986), and McGuire v. Welfare Division, 101 Nev. 179, 697 P.2d 479 (1985). NRS
128.105.
10. Infants.
The best interests of the child and parental fault must both be shown by clear and convincing evidence before parental rights can
be terminated. NRS 128.105.
11. Infants.
The purpose of the parental right termination statute is not to punish parents, but to protect the welfare of children. NRS 128.005.
The parent-child relationship is a fundamental liberty interest. U.S. Const. amend. 14.
13. Infants.
Deciding whether to terminate parental rights requires weighing the interests of the children and the interests of the parents. NRS
128.105.
14. Infants.
Evidence that biological parents left the child with the child's aunt and uncle without any provision for support for over seven
years, that mother saw the child only twice during that period and father did not see the child at all,
........................................
the child at all, and that the parents spoke to the child on the telephone only once during that period, satisfied the statutory presumption
of abandonment in proceeding to terminate parental rights, thereby shifting the burden to the biological parents to prove they did not
abandon the child. NRS 47.180(1), 128.012(2).
15. Infants.
The application of the statutory presumption of abandonment of a child by a parent is not discretionary. NRS 128.012(2).
16. Infants.
Hearsay rule did not exclude admission, in proceeding to terminate parental rights, of four letters written in Arabic by the
biological father to the child's guardians, which were accompanied by a sworn affidavit of the translator. The nature of the letters and
the special circumstances under which they were written offered assurances of accuracy not likely to be enhanced by calling the father
as a witness. NRS 51.075.
17. Appeal and Error; Trial.
The district court has considerable discretion in determining the admissibility of evidence, and the supreme court will not disturb a
district court's ruling absent an abuse of that discretion.
OPINION
This is an appeal from an order of the district court denying a petition for termination of parental
rights and from an order denying a motion for a new trial. In determining whether to terminate parental
rights, this court has consistently applied the jurisdictional/dispositional standard set forth in Champagne
v. Welfare Division, 100 Nev. 640, 691 P.2d 849 (1984). Based on legislative amendments to NRS 128.105,
which sets forth the grounds for terminating parental rights, we now reject our Champagne standard,
which requires a district court to find jurisdictional grounds to terminate parental rights before it
considers the best interests of the child. In its place, we adopt a best interest/parental fault standard
which requires a district court to consider whether the best interests of the child would be served by the
termination and whether parental fault exists. We also conclude that the district court failed to apply the
statutory presumption of abandonment as codified in NRS 128.012(2). In light of our decision today, we
reverse the district court's orders and remand this matter for a new trial.
FACTS
In 1988, a child was born to respondents Hikmet and Raja J. in Baghdad, Iraq. In early 1990, Raja and
the child traveled from Iraq to Michigan, where family resides. That summer, Raja departed from the
United States and left the child behind in Michigan with her sister and brother-in-law,
........................................
departed from the United States and left the child behind in Michigan with her sister and brother-in-law,
appellants Talia and Sam Z. Since then, Talia and Sam have raised the child in Las Vegas and San Diego. Talia
and Sam are the only parents the child has ever known. Until recently, the child was unaware of the true identity
of her biological parents.
In 1996, after caring for the child for approximately six years, Talia and Sam petitioned the Nevada district
court for guardianship of the child. Talia and Sam's petition was granted. Subsequently, Raja and Hikmet filed a
petition to terminate the guardianship, which was denied. Thereafter, Talia and Sam sought to adopt the child.
Accordingly, in May 1997, Talia and Sam moved the district court to terminate the parental rights of Raja and
Hikmet. An evidentiary hearing was conducted on November 21, 1997.
During the hearing, the parties offered drastically differing evidence regarding the reasons why Talia and
Sam have raised the child since 1990. Talia testified that following the news of Raja's pregnancy with the child,
a family member informed her that Raja was going to give the baby to her. According to Talia, Raja allegedly
said that she wanted Talia to raise the child because Raja was too old and Talia was unable to conceive. Talia
further testified that when Raja brought the child to the United States in 1990, Raja told Talia that the baby was
now hers. Talia testified that she telephoned Hikmet, and he also told her to keep the baby.
Raja testified that she brought the child to Michigan in 1990 simply to visit family members. Raja further
testified that her mother, the child's grandmother, convinced her to leave the child in the United States so that
Raja could join Hikmet at a medical conference in London, England.
1
Following the London conference, Raja
and Hikmet returned to Iraq. According to Raja, she and Hikmet intended to retrieve the child in October 1990
when Hikmet was scheduled to attend a medical conference in Toronto, Canada. However, on August 2, 1990,
Iraq invaded Kuwait. The allied forces began bombing Iraq on January 17, 1991. According to Raja and Hikmet,
travel out of Iraq was restricted due to the conflict. Exactly when travel was restricted and for how long is
unclear. The record indicates that in 1993, Raja traveled to Michigan to attend her older daughter's wedding. In
1995, Raja returned to the United States to renew her green card. Allegedly, there was a ban on highly educated
people leaving Iraq without special permission, and according to Raja and Hikmet, Hikmet was not allowed to
leave Iraq until 1997. Talia and Sam insist that Hikmet traveled to Jordan in 1995.
__________

1
At the time, Hikmet was a university professor and medical doctor in Baghdad.
........................................
Siblings of Talia and Raja testified that the entire family discussed the fact that Raja intended to give the
child to Talia. According to one family member, Raja said that she gave Talia her baby in order for Talia to have
luck in having children of her own. This family member testified that, [t]hat's a superstition . . . in our culture.
Also during the evidentiary hearing, the parties presented conflicting evidence regarding two adoption
consent forms allegedly executed by Raja and Hikmet. Raja admitted signing the first adoption consent form in
Michigan on July 2, 1990, the day she left the United States for England. However, Raja testified that she did
not read the document and thought it was an application to extend the child's visa. Talia testified that Raja is
fluent in English and knew that the document was an adoption consent form. Talia further testified that Hikmet
signed this document in her presence when she traveled to Iraq in 1994.
2

Raja and Hikmet admitted that they executed a second adoption consent form during December 1990 in Iraq.
Raja and Hikmet further testified that they mailed this document with a will to Raja's mother. Raja and Hikmet
insist that a letter, enclosed with the documents, instructed Raja's mother not to give the adoption consent form
to Talia and Sam unless Raja and Hikmet and their three grown children died during the war. Raja reclaimed the
adoption consent form from her mother in 1993, but apparently did not recover the letter or will.
3
Raja and
Hikmet resided in Iraq until the beginning of 1997 when they immigrated to the United States.
During the seven years before Talia and Sam filed their petition to terminate Raja and Hikmet's parental
rights, Raja saw the child two times while visiting the United States, and Hikmet did not see the child at all.
Talia testified that even though she telephoned Raja and Hikmet frequently, Raja and Hikmet showed no interest
in communicating with the child; according to Talia they spoke to the child once by telephone when the child
was four or five years old. Talia and Sam insist that Raja and Hikmet never provided any financial support for
the child. Talia testified that Raja and Hikmet never sent the child presents or cards, except on one occasion
when Raja and Hikmet allegedly sent a Christmas card addressed to the entire Z. family. The record establishes
that immediately after Talia and Sam took custody of the child from Raja and Hikmet, they changed the
child's name.
__________

2
The notarized adoption consent form indicates that Hikmet executed this document in the presence of
Dolores Fox, a notary public, and in the presence of two independent witnesses. However, Dolores Fox admitted
that Hikmet did not sign the adoption consent form in her presence and that her notarization was unlawful.
Hikmet contended that he never signed this document.

3
The letter and will were never produced at the hearing.
........................................
Raja and Hikmet, they changed the child's name. Raja and Hikmet, and their three grown children, have since
referred to the child by the new name.
Following the evidentiary hearing, the district court denied the petition to terminate Raja and Hikmet's
parental rights. The district court determined that the evidence presented did not establish by clear and
convincing evidence jurisdictional grounds that Raja and Hikmet had abandoned the child. Thereafter, Talia and
Sam timely filed a motion for a new trial. On May 14, 1998, the district court denied Talia and Sam's motion.
Talia and Sam timely filed this appeal.
DISCUSSION
Standard of review
[Headnotes 1-3]
Termination of parental rights is an exercise of awesome power. Smith v. Smith, 102 Nev. 263, 266, 720
P.2d 1219, 1220 (1986). Severance of the parent-child relationship is tantamount to imposition of a civil death
penalty. Drury v. Lang, 105 Nev. 430, 433, 776 P.2d 843, 845 (1989). Accordingly, this court closely
scrutinizes whether the district court properly preserved or terminated the parental rights at issue. See, e.g.,
Matter of Parental Rights as to Carron, 114 Nev. 370, 956 P.2d 785 (1998); Matter of Parental Rights as to
Gonzales, 113 Nev. 324, 933 P.2d 198 (1997); Scalf v. State, Dep't of Human Resources, 106 Nev. 756, 801
P.2d 1359 (1990); Kobinski v. State, 103 Nev. 293, 738 P.2d 895 (1987). Due process requires that clear and
convincing evidence be established before terminating parental rights. See Cloninger v. Russell, 98 Nev. 597,
655 P.2d 528 (1982). This court will uphold termination orders based on substantial evidence, and will not
substitute its own judgment for that of the district court. See Kobinski, 103 Nev. at 296, 738 P.2d at 897.
Grounds for termination of parental rights
NRS 128.105 sets forth the basic considerations relevant in determining whether to terminate parental
rights: the best interests of the child and parental fault. In 1997, at the time of this proceeding, this statute
provided as follows:
The primary consideration in any proceeding to terminate parental rights must be whether the best
interests of the child will be served by the termination. An order of the court for termination of parental
rights must be made in light of the considerations set forth in this section and NRS 128.106 to 128.109,
inclusive, and based on evidence and include a finding that:
........................................
1. The best interests of the child would be served by the termination of parental rights; and
2. The conduct of the parent or parents demonstrated at least one of the following:
(a) Abandonment of the child;
(b) Neglect of the child;
(c) Unfitness of the parent;
(d) Failure of parental adjustment;
(e) Risk of serious physical, mental or emotional injury to the child if he were returned to, or remains
in, the home of his parent or parents;
(f) Only token efforts by the parent or parents:
(1) To support or communicate with the child;
(2) To prevent neglect of the child;
(3) To avoid being an unfit parent; or
(4) To eliminate the risk of serious physical, mental or emotional injury to the child; or
(g) With respect to termination of the parental rights of one parent, the abandonment by that parent.
Talia and Sam contend that the district court failed to apply the correct standard of law in denying their
petition for termination of Raja and Hikmet's parental rights. Specifically, Talia and Sam contend that the district
court reached its decision by relying on the standard set forth in Champagne, which addressed NRS 128.105 as
it was written in 1985. Talia and Sam insist that the district court is required to consider the best interests of the
child in reaching its decision.
Nevada's termination statute has changed significantly since its enactment in 1975. The earliest version of the
statute did not expressly address the best interests of the child. Rather, the statute articulated specific grounds
upon which termination could be granted: A finding by the court of any of the following: (a) Abandonment of a
child; (b) Neglect of a child; or (c) Unfitness of a parent, is sufficient ground for termination of parental rights.
1975 Nev. Stat. ch. 549, 10, at 964.
In 1981, the legislature amended the statutory provisions addressing the grounds for terminating parental
rights. In particular, the legislature inserted an opening paragraph: An order of the court for termination of
parental rights may be made on the grounds that the termination is in the child's best interest in light of the
considerations set forth in this section and [NRS 128.106 to 128.108], inclusive. 1981 Nev. Stat. ch. 718, 19,
at 1755 (emphasis added). The amendment expanded the grounds upon which termination could be granted to
include (in addition to abandonment, neglect, and unfitness of the parent) risk of serious physical, mental or
emotional injury to the child, and token efforts by the parent. Id.
........................................
Following the 1981 amendments to NRS 128.105, this court in Champagne interpreted the statute and
announced a two-step analysis to be applied when deciding whether to terminate parental rights. According to
Champagne, the first step in the analysis requires that there be what the court characterized as jurisdictional
grounds for termination. Id. at 640, 691 P.2d at 849. Jurisdictional grounds relate to parental conduct or
incapacity and the parent's suitability as a parent. Id. at 646, 691 P.2d at 854 (footnote omitted). In other words,
jurisdictional grounds focus on parental fault or inability to act as a parent. If jurisdictional grounds for
termination are not established, the inquiry ends. Id. at 647, 691 P.2d at 854. If jurisdictional grounds are
established, the analysis turns to whether dispositional grounds exist for termination. Dispositional grounds
relate to whether the child's interest would be served by termination. Id. at 652, 691 P.2d at 857. The
Champagne court explained that [i]f under no reasonable circumstances the child's best interest can be served
by sustaining the parental tie, dispositional grounds for termination exist. Id. at 652, 691 P.2d at 858.
[Headnote 4]
As described, we used the term jurisdictional in Champagne to describe parental fault. The term
jurisdictional, as used in this context, may have been misleading in that it suggests that the district court would
be without subject matter jurisdiction to act on a termination petition absent a finding of parental fault. In fact,
the district court always maintains subject matter jurisdiction over a properly filed petition to terminate parental
rights. Despite the unfortunate choice of the word jurisdictional, Champagne actually held that relief prayed
for in the petition, i.e., termination of parental rights, could not be granted unless parental fault was first
established and a subsequent finding that termination would be in the child's best interests was made.
Our holding in Champagne placed the main focus on the conduct of the parents. In 1987, the legislature
responded to our decision in Champagne, and again amended the termination statute. The amended version
provided in relevant part that an order of the court for termination of parental rights must be made . . . with the
initial and primary consideration being whether the best interests of the child would be served by the
termination, but requiring a finding of parental fault. 1987 Nev. Stat. ch. 116, 1, at 210. The legislative
history indicates that the legislature was concerned that the Champagne decision bifurcated the issues regarding
children's rights and parent's rights in termination proceedings. See Hearing on A.B. 308 Before the Nevada
Assembly Committee on Judiciary, 64th Leg. (Nev., March 20, 1987). During the hearings, Senator Sue
Wagner, chairperson of the committee on the judiciary, stated that the purpose of the bill as amended was to
provide that parental rights and children's rights were of equal importance in the
termination of parental rights proceedings and must be considered together.
........................................
amended was to provide that parental rights and children's rights were of equal importance in the termination of
parental rights proceedings and must be considered together. Id.
Following the 1987 amendment to the termination statute, we acknowledged the statutory revision in
Greeson v. Barnes, 111 Nev. 1198, 1200-01, 900 P.2d 943, 945 (1995), and concluded that jurisdictional
grounds must still be established before terminating parental rights:
In Champagne, this court designated the considerations relating to the conduct of the parent as the
jurisdictional ground, and the considerations relating to the child's best interest as the dispositional
ground. In 1989, [sic] in reaction to our decision in Champagne which seemed to accord primary
emphasis to the rights of the parent over the rights of the child, the legislature added the following
language to NRS 128.105: with the initial and primary consideration being whether the best interests of
the child would be served by the termination (citation omitted). This amendment did not alter the
requirement set out in NRS 128.105 and Champagne that at least one of the grounds alleging parental
fault must be proven by clear and convincing evidence.
In affirming the district court's order terminating the father's parental rights, the Greeson court explained that
under NRS 128.105 a lower court may terminate a parent's rights if it finds by clear and convincing evidence
that the parent has abandoned the child and that terminating the parent's rights is in the best interest of the child.
Id. at 1201, 900 P.2d at 945. The opinion concluded that the statutory amendment did not alter the Champagne
analysis.
In 1995, the same year that Greeson was decided, the legislature once again amended NRS 128.105 by
changing the introductory sentence as follows: The primary consideration in any proceeding to terminate
parental rights must be whether the best interests of the child will be served by the termination. 1995 Nev. Stat.,
ch. 146, 1, at 215. The following year, in Matter of Parental Rights of Montgomery, 112 Nev. 719, 917 P.2d
949 (1996), this court reversed a district court order terminating the mother's parental rights on the basis that
jurisdictional grounds for termination were not proved by clear and convincing evidence. In Montgomery, we
began our analysis by setting forth the Champagne standard. Id. at 726, 917 P.2d at 955. Thereafter, we
concluded that since the jurisdictional grounds were not supported by clear and convincing evidence, the district
court erred in terminating the mother's parental rights. Additionally, we determined that an analysis of the child's
best interests was not warranted:
........................................
Because none of the jurisdictional findings were supported by clear and convincing evidence, we
conclude that the district court erred in finding jurisdictional grounds for termination of Cherrel's parental
rights. Therefore, we need not address the district court's findings with respect to dispositional grounds
for termination.
Id. at 729-30, 917 P.2d at 956-57.
In 1997, in Matter of Parental Rights as to Gonzales, 113 Nev. 324, 334, 933 P.2d 198, 205 (1997), we
noted that [i]n 1995, the Nevada Legislature amended NRS 128.105 to state that [t]he primary consideration in
any proceeding to terminate parental rights must be whether the best interests of the child will be served by the
termination.' Despite our recognition of the legislative amendment, we analyzed the case under the Champagne
framework.
Our adherence to the Champagne standard has resulted in the improper application of the termination statute.
The amendments to NRS 128.105 demonstrate the legislature's frustration with Champagne and its progeny,
which place too much emphasis on the conduct of the parents instead of on the best interests of the child.
Clearly, the legislative amendments of NRS 128.105 illustrate the legislature's concern with protecting the best
interests of the child.
[Headnotes 5-9]
It is well settled in Nevada that words in a statute should be given their plain meaning unless this violates
the spirit of the act. McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986). [N]o part
of a statute should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can
properly be avoided.' Paramount Ins. v. Rayson & Smitley, 86 Nev. 644, 649, 472 P.2d 530, 533 (1970)
(alteration in original) (quoting Torreyson v. Board of Examiners, 7 Nev. 19, 22 (1871)). Thus, [w]here a
statute is clear on its face, a court may not go beyond the language of the statute in determining the legislature's
intent. McKay, 102 Nev. at 648, 730 P.2d at 441. Pursuant to the plain meaning of the termination statute, as
amended in 1995, it is unmistakable that in all termination of parental rights proceedings, the best interests of the
child must be the primary consideration. Moreover, the statute clearly provides that when deciding whether to
terminate parental rights, the district court must always consider the best interests of the child in conjunction
with a finding of parental fault.
Accordingly, we now abandon Champagne's strict adherence to a finding of parental fault to terminate
parental rights before the district court considers the best interests of the child.
........................................
district court considers the best interests of the child.
4
Application of the Champagne standard may have
resulted in an artificial determination by the district court concerning parental fault, because such a
determination cannot be made without considerations of how the parents' conduct has impacted the child. The
impact of parental conduct on the child is, in turn, one consideration in determining the best interests of the
child. We will no longer require district courts, in the name of determining parental fault, to consider rigidly and
formulaically the conduct of the parents in a vacuum, without considering the best interests of the child. Instead,
in conformance with NRS 128.105, we adopt a best interests/parental fault standard for termination cases.
5
Accordingly, the district court in determining whether to terminate parental rights must consider both the best
interests of the child and parental fault.
The termination statute sets forth factors to be considered in determining the best interests of the child. In
particular, the statute provides that the continuing needs of a child for proper physical, mental and emotional
growth and development are the decisive considerations in proceedings for termination of parental rights. NRS
128.005(2)(c). These factors allow the district court to consider the distinct facts of each case in deciding
whether or not to terminate parental rights.
In Cooley v. State, Department of Human Resources, 113 Nev. 1191, 946 P.2d 155 (1997), this court
addressed the best-interests-of-the-child standard. In Cooley, the mother was sixteen years old when she gave
birth to the child. Two years later, during termination proceedings, evidence was offered to show that the mother
was raising that child in a home that was unsanitary and dangerous, that the mother had a bad temper, that the
mother failed to complete two separate case plans, and that the mother exhibited no emotional connection with
the child. Id. at 1192-96, 946 P.2d at 155-5S.
__________

4
To the extent that our case law follows the jurisdictional/dispositional analysis announced in Champagne,
we overrule the following cases: Matter of Parental Rights as to Carron, 114 Nev. 370, 956 P.2d 785 (1998);
Matter of Parental Rights as to Daniels, 114 Nev. 81, 953 P.2d 1 (1998); Cooley v. State, Dep't Hum. Res., 113
Nev. 1191, 946 P.2d 155 (1997); Matter of Parental Rights as to Gonzales, 113 Nev. 324, 933 P.2d 198 (1997);
Matter of Parental Rights as to Bow, 113 Nev. 141, 930 P.2d 1128 (1997); Matter of Parental Rights of
Weinper, 112 Nev. 710, 918 P.2d 325 (1996); Scalf v. State, Dep't of Human Resources, 106 Nev. 756, 801
P.2d 1359 (1990); Smith v. Smith, 102 Nev. 263, 720 P.2d 1219 (1986); Daly v. Daly, 102 Nev. 66, 715 P.2d
56 (1986); McGuire v. Welfare Division, 101 Nev. 179, 697 P.2d 479 (1985).

5
In light of this new standard, we will no longer refer to the terms jurisdictional and dispositional to
describe the judicial findings that must be made in termination cases.
........................................
at 155-58. The district court found that the mother's conduct established abuse and neglect. Id. at 1196, 946 P.2d
at 158. The district court concluded that termination was in the best interests of the child because the mother was
incapable of caring for the child, lacked parenting skills and could not provide the child with a stable home. Id.
The district court further noted that the mother was immature, selfish, and indifferent towards the child. Id.
Finally, the district court observed that the child needed a parent immediately and that the child should not have
to defer her needs until the mother decided that she wanted to be a parent. Id. Accordingly, in determining
whether it was in the best interests of the child to terminate the mother's parental rights, the district court
considered that particular child's physical, mental and emotional well being.
6

[Headnote 10]
In addition to considerations of the best interests of the child, the district court must find at least one of the
enumerated factors for parental fault: abandonment of the child; neglect of the child; unfitness of the parent;
failure of parental adjustment; risk of injury to the child if returned to, or if left remaining in, the home of the
parents; and finally, only token efforts by the parents. See NRS 128.105(2)(a)-(f). Although the best interests of
the child and parental fault are distinct considerations, the best interests of the child necessarily include
considerations of parental fault and/or parental conduct. Accordingly, the best interests of the child and parental
fault must both be shown by clear and convincing evidence. See Montgomery, 112 Nev. at 726, 917 P.2d at 955.
[Headnotes 11-13]
The purpose of Nevada's termination statute is not to punish parents, but to protect the welfare of children.
See NRS 128.005. The United States Supreme Court has decisively established that the parent-child relationship
is a fundamental liberty interest. See, e.g., Lehr v. Robertson, 463 U.S. 248, 258 (1983) (maintaining that the
relationship of love and duty in a family unit is a liberty interest entitled to constitutional protection); Santosky
v. Kramer, 455 U.S. 745, 753 (1982) (noting that the fundamental liberty interest of natural parents in the care,
custody, and management of their child does not evaporate simply because they have not been model parents);
Quilloin v. Walcott, 434 U.S. 246, 255 {197S)
__________

6
We note that the results of this case may have been different had the child been older and had different
needs. A child's needs necessarily affect the impact of parental conduct.
........................................
(1978) (recognizing that the parent-child relationship is constitutionally protected); Stanley v. Illinois, 405 U.S.
645, 651 (1972) (stressing the importance of the family and the right to raise children); see also Francis Barry
McCarthy, The Confused Constitutional Status and Meaning of Parental Rights, 22 Ga. L. Rev. 975 (1988)
(examining the historical development of parents' constitutional rights). While we recognize the importance of
parents' constitutional interest in maintaining a relationship with their children, we also recognize that as a
society we have an interest in raising children in an environment that is not harmful to their welfare or best
interests. See Mary S. Coleman, Standards for Termination of Parental Rights, 26 Wayne L. Rev. 315, 322
(1980) (examining the interests of parents and children in termination proceedings); see also Raymond C.
O'Brien, An Analysis of Realistic Due Process Rights of Children Versus Parents, 26 Conn. L. Rev. 1209 (1994)
(contending that application of preponderance of the evidence standard, as opposed to clear and convincing
evidence, in termination cases would recognize both the parental presumption and the rights of the child).
Accordingly, deciding whether to terminate parental rights requires weighing the interests of the children and the
interests of the parents.
Numerous courts have recognized a best interests/parental fault standard in deciding whether to terminate
parental rights. See, e.g., Egly v. Blackford County Dep't of Pub. Welfare, 592 N.E.2d 1232 (Ind. 1992)
(reviewing evidence of parents' failure to meet responsibility as parents and best interests of the child); L.B.A. v.
H.A., 731 S.W.2d 834 (Ky. Ct. App. 1987) (considering the rights of the natural mother and the best interests of
child in termination proceedings); In re Christina H., 618 A.2d 228 (Me. 1992) (recognizing that best interests of
the child inquiry is separate and distinct from parental fault inquiry); In re J.J.B., 390 N.W.2d 274 (Minn. 1986)
(noting that in termination cases, balance between child's best interest and parents' interest is required); In re
A.K.L. and A.M.L., 942 S.W.2d 953 (Mo. Ct. App. 1997) (recognizing the primary concern must be best
interest of the child and parental fault); In re M.B., 386 N.W.2d 877 (Neb. 1986) (balancing best interests of
child with parental fault in termination proceeding); In re Kristopher B., 486 A.2d 277 (N.H. 1984) (balancing
best interests of the child with parental fault required in termination proceeding); Ward v. Commonwealth, 408
S.E.2d 921 (Va. Ct. App. 1991) (stating that termination of parental rights requires examination of best interests
of the child and the likelihood of parental rehabilitation). These courts have acknowledged the importance of
weighing the interests of the child and the interests of the parents in termination proceedings.
........................................
In the present case, the district court did not consider the best interests of the child, because the court found
that the jurisdictional grounds for termination were not proven by clear and convincing evidence. In light of the
statutory amendments to the termination statute, we conclude that, upon remand, the district court must consider
whether the best interests of the child would be served by the termination, coupled with considerations of
whether parental fault exists.
Statutory presumption of abandonment
[Headnote 14]
The district court did not apply the statutory presumption of abandonment contained in NRS 128.012(2) in
considering whether Raja and Hikmet abandoned the child. NRS 128.012 defines abandonment of a child as
follows:
1. Abandonment of a child means any conduct of one or both parents of a child which evinces a
settled purpose on the part of one or both parents to forego all parental custody and relinquish all
claims to the child.
2. If a parent or parents of a child leave the child in the care and custody of another without
provision for his support and without communication for a period of 6 months, . . . the parent or parents
are presumed to have intended to abandon the child.
NRS 128.090(2) provides in relevant part that the district court shall in all cases require the petitioner to
establish the facts by clear and convincing evidence and shall give full and careful consideration to all of the
evidence presented.
Talia and Sam introduced evidence that Raja and Hikmet had abandoned the child. The evidence showed
that Raja and Hikmet left their child with Talia and Sam without any provision for support for over seven years.
During that period, Raja saw the child only twice and Hikmet did not see the child at all. Talia and Sam also
offered evidence that Raja and Hikmet spoke to the child on the telephone only once during this time.
As stated previously, the district court did not apply the statutory presumption of abandonment in
considering whether Raja and Hikmet abandoned the child. Once Talia and Sam introduced evidence that Raja
and Hikmet left the child for six months without communication or provisions for support, application of the
statutory presumption of abandonment shifted the burden to Raja and Hikmet to prove that they did not
abandon the child. See NRS 47.180(1) (providing that [a] presumption, other than a presumption against the
accused in a criminal action, imposes on the party against whom it is directed the burden of proving that the
nonexistence of the presumed fact is more probable than its existence").
........................................
nonexistence of the presumed fact is more probable than its existence).
[Headnote 15]
We conclude that the district court erred in failing to apply the statutory presumption. This court has
previously acknowledged that the application of the statutory presumption of abandonment contained in NRS
128.012(2) is not discretionary. See Gonzales, 113 Nev. at 331 n.5, 933 P.2d at 202 n.5.
Exclusion of English translations of four Arabic letters
[Headnote 16]
During the proceedings, Talia and Sam attempted to admit four Arabic letters written by Hikmet to Talia
and Sam. Talia and Sam had the letters translated by a translator certified by the Eighth Judicial District
Court. The translations were accompanied by a sworn affidavit of the translator. The significance of the letters,
according to Talia and Sam, is that they rebut Raja and Hikmet's assertions that they never intended the child to
remain with Talia and Sam. Talia and Sam contend that this excluded evidence is manifestly important to their
case and that the district court erred in excluding the letters.
[Headnote 17]
The district court has considerable discretion in determining the admissibility of evidence and this court will
not disturb a district court's ruling absent an abuse of that discretion. See K-Mart Corporation v. Washington,
109 Nev. 1180, 866 P.2d 274 (1993). NRS 51.075 provides in relevant part that [a] statement is not excluded
by the hearsay rule if its nature and the special circumstances under which it was made offer assurances of
accuracy not likely to be enhanced by calling the declarant as a witness. We conclude that the district court
abused its discretion in excluding the certified translations of the four Arabic letters written by Hikmet to Talia
and Sam.
CONCLUSION
We conclude that a new trial is required in light of the legislative amendments to NRS 128.105, which
require the district courts to give primary consideration to whether the child's best interests will be served by
the parental termination. We also conclude that a new trial is warranted because the district court failed to
apply the statutory presumption of abandonment as codified in NRS 128.012(2), and erred in excluding the
certified English translations of the four Arabic letters.
Accordingly, we reverse the order of the district court denying Talia and Sam's petition to terminate the
parental rights of Raja and Hikmet as well as the district court's order denying Talia and
Sam's motion for a new trial,
........................................
and Hikmet as well as the district court's order denying Talia and Sam's motion for a new trial, and remand this
matter for further proceedings consistent with this opinion.
7

Rose, C. J., Young, Maupin, Shearing, Leavitt and Becker, JJ., concur.
____________
116 Nev. 805, 805 (2000) South Fork Band, Te-Moak Tribe v. Dist. Ct.
SOUTH FORK BAND OF THE TE-MOAK TRIBE OF WESTERN SHOSHONE INDIANS OF NEVADA;
MARVIN McDADE, in His Capacity as Chairman of the South Fork Band Council, Petitioners, v. THE
SIXTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for THE COUNTY
OF HUMBOLDT, and THE HONORABLE RICHARD A. WAGNER, District Judge, Respondents,
and STATE ENGINEER OF THE STATE OF NEVADA and WATER COMMISSIONERS OF THE
SIXTH JUDICIAL DISTRICT COURT, Real Parties in Interest.
No. 35591
August 24, 2000 7 P.3d 455
Original petition for writ of prohibition seeking to prevent the district court from proceeding on a petition for
an order requiring petitioners to show cause why they should not be held in contempt for interfering with the
state engineer and water commissioners in regulating adjudicated water rights along the Humboldt River.
Indian tribe and tribal officer petitioned for writ of prohibition to prevent the district court from proceeding
on a petition for an order requiring petitioners to show cause why they should not be held in contempt for
interfering with the state engineer and water commissioners in entering reservation to regulate adjudicated water
rights pursuant to the Humboldt Decree of water rights along the Humboldt River. The supreme court held that:
(1) the tribe had waived its sovereign immunity, and (2) the United States, as legal owner of the reservation, was
not an indispensable party.
Petition denied.
Nevada Legal Services and Raymond Rodriguez, Carson City, for Petitioners.
David G. Allison, District Attorney, Humboldt County, for Respondents.
__________

7
In light of our disposition, we need not address the other contention raised on appeal: whether newly
discovered evidence warrants a new trial or new and additional testimony.
........................................
Frankie Sue Del Papa, Attorney General, and Paul G. Taggart, Deputy Attorney General, Carson City, for
Respondents and Real Parties in Interest.
1. Indians.
Indian tribes possess the same common-law immunity from suit traditionally enjoyed by sovereign powers.
2. Indians.
An Indian tribe's sovereign immunity can be waived.
3. Indians.
An Indian tribe's waiver of sovereign immunity may not be implied, but must be expressed unequivocally.
4. Indians.
A waiver of sovereign immunity does not require the invocation of magic words indicating that a tribe has waived its sovereign
immunity.
5. Indians.
Generally, without congressional authority to consent to suit, Indian tribes are exempt from suit.
6. Indians.
Indian tribe waived sovereign immunity as to district court's authority to exercise jurisdiction over the tribe concerning its alleged
interference with administration of water rights pursuant to water rights decree, where the United States had purchased, and the tribe
had taken, the reservation land subject to previously adjudicated water rights, and where the tribe's actions in benefiting from and
abiding by the decree for more than five decades, such as by paying assessment fees and permitting state engineer and water
commissioners access to the reservation, served to ratify the waiver.
7. Waters and Water Courses.
The district court has continuing jurisdiction over matters arising out of the administration of the Humboldt Decree of water rights
along the Humboldt River.
8. Contempt.
The district court has the authority to hold in contempt those who interfere with or frustrate the actions of the state engineer or
water commissioners in the administration of the Humboldt Decree of water rights along the Humboldt River.
9. Indians.
A tribe enjoys sovereign immunity, and thus, generally, cannot be subjected to the jurisdiction of a state court.
10. Contempt.
The United States was not an indispensable party in a proceeding to hold Indian tribe and tribal officer in contempt for
interfering with regulation of adjudicated water rights, though the United States, as trustee, was the legal owner of the reservation and
accompanying water rights, where the tribe and tribal officer, but not the United States, created and adopted the resolutions that
frustrated and interfered with the water commissioners' efforts to enter the reservation to regulate the water rights, and the interests of
the United States would not be affected by the contempt proceedings.
11. Prohibition.
A writ of prohibition is an appropriate vehicle through which to challenge the district court's improper exercise of jurisdiction.
NRS 34.320.
........................................
OPINION
Per Curiam:
This is an original petition for writ of prohibition seeking to prevent the district court from proceeding on
a petition for an order requiring petitioners to show cause why they should not be held in contempt for
interfering with the state engineer and water commissioners in regulating adjudicated water rights along the
Humboldt River. Petitioners contend that the district court lacks jurisdiction based on sovereign immunity.
We conclude that petitioners waived sovereign immunity when the United States purchased, and
petitioners took, the reservation land subject to previously adjudicated water rights. Petitioners ratified this
waiver by their historical compliance with the Humboldt Decree, including paying assessment fees and
permitting the state engineer and water commissioners access to the reservation. Consequently, petitioners
are subject to the jurisdiction of the Sixth Judicial District Court, and we therefore deny the petition for writ
of prohibition.
In 1913, the state engineer initiated water rights adjudication procedures for the Humboldt River. See
Ormsby County v. Kearney, 37 Nev. 314, 142 P. 803 (1914). The state engineer issued an order of
determination for the Humboldt River in 1923. As part of the adjudication, the Sixth Judicial District
Court decreed water rights to five ranches. In 1935, the Sixth Judicial District Court amended the decree,
completing its adjudication of water rights for the Humboldt River. This decree became known as the
Humboldt Decree, and thereafter, the state engineer and the water commissioners were responsible for
distributing the water rights adjudicated under the Decree. Subsequently, between 1937 and 1942, the
United States purchased the five ranches to form the South Fork Reservation for the Te-Moak Tribe of
the Western Shoshone Indians (the tribe).
For approximately fifty-five years, the tribe cooperated with the state engineer and water
commissioners, allowing them access onto the reservation. In particular, the tribe allowed the state
engineer and water commissioners to enter the reservation and to traverse the reservation to reach
private lands on which diversions that served the tribe's water rights, as well as other landowners' rights,
were located. It appears from the documentation submitted to this court that the United States paid the
assessment fees for a period of time in the 1970s and early 1980s, and that the tribe paid the assessment
fees from the mid-1980s until at least the early 1990s.
........................................
early 1990s. However, on March 8, 1998, the tribe adopted two resolutions decreeing that water commissioners
would not be allowed to enter the reservation and that the tribe would not pay assessment fees that were charged
against every holder of water rights in the Humboldt River.
Subsequently, and at different times, the state engineer and water commissioners of the Sixth Judicial District
Court filed three contempt proceedings in the Sixth Judicial District Court.
1
We are presently concerned with
the third contempt proceeding, which is the subject of this petition. In that contempt proceeding, the state
engineer sought an order from the district court directing petitioners to show cause why they should not be held
in contempt for frustrating the water commissioners' enforcement of the Humboldt Decree, specifically regarding
an incident that occurred on September 13, 1999.
On September 13, 1999, Wayne Testolin, a supervising water commissioner, and two other water
commissioners entered the reservation to reach a private ranch adjacent to the reservation, known as the Gund
Ranch, for the purpose of regulating the river pursuant to the Humboldt Decree. Some of the tribe's water rights
are served by diversions located on the Gund Ranch. Consequently, to properly control the tribe's water rights,
as well as water rights for other private landowners, the diversions located on the Gund Ranch must be adjusted.
2
When the water commissioners entered the reservation, they were followed by a tribal peace officer. The
water commissioners traveled off the reservation and onto the Gund Ranch, where they were stopped by the
tribal peace officer and Mr. Marvin McDade, chairman of the South Fork Band Council, and escorted back to
the tribal office on the reservation. Mr. Testolin was handcuffed, charged with trespass and escorted off the
reservation.
On November 9, 1999, the state engineer and water commissioners of the Sixth Judicial District Court
petitioned the district court for an order to show cause why the tribe and Mr. McDade should
not be held in contempt for interfering with the water commissioners' authority to
regulate the Humboldt River.
__________

1
The first contempt proceeding (Humboldt I) was filed against petitioners, but was subsequently amended to
name the United States as a respondent. The United States filed a notice of removal, removing the proceeding to
federal court. The federal court denied the state's motion to remand the case to state court. See State Engineer v.
South Fork Band of Te-Moak Tribe, 66 F. Supp. 2d 1163 (D. Nev. 1999). The state engineer also filed a
separate contempt proceeding (Humboldt II) in the Sixth Judicial District Court against the United States in an
effort to compel the United States to pay the assessment fees. Again, the United States filed a notice of removal
to federal court. The state engineer filed a motion to remand the proceedings to state court. At the time this
petition for writ of prohibition was filed, the state engineer's motion to remand remained pending in federal
court.

2
The state engineer and water commissioners contend that they cross the reservation to reach the Gund
Ranch because it provides the most reasonable access to the ranch.
........................................
court for an order to show cause why the tribe and Mr. McDade should not be held in contempt for interfering
with the water commissioners' authority to regulate the Humboldt River. The tribe and Mr. McDade filed a
motion to dismiss the petition, which the district court denied. The tribe and Mr. McDade then filed this petition
for a writ of prohibition to prevent the district court from proceeding with a contempt hearing, contending that
the district court lacks jurisdiction over the tribe and Mr. McDade, in his official capacity, and that the United
States is an indispensable party to the district court contempt proceedings.
[Headnotes 1-4]
Turning to the issue of the district court's jurisdiction over the tribe, [i]t is well established that Indian tribes
possess the same common-law immunity from suit traditionally enjoyed by sovereign powers. Val-U Constr.
Co. v. Rosebud Sioux Tribe, 146 F.3d 573, 576 (8th Cir. 1998); accord Blatchford v. Native Village of Noatak,
501 U.S. 775 (1991); Pan American Co. v. Sycuan Band of Mission Indians, 884 F.2d 416, 418 (9th Cir. 1989).
However, sovereign immunity can be waived. See Puyallup Tribe v. Washington Game Dept., 433 U.S. 165
(1977). Such a waiver may not be implied, but must be expressed unequivocally. See Santa Clara Pueblo v.
Martinez, 436 U.S. 49, 58-59 (1978). A waiver does not require the invocation of magic words indicating that
a tribe has waived its sovereign immunity. See Val-U Constr. Co., 146 F.3d at 577.
[Headnote 5]
Generally, without congressional authority, Indian tribes are exempt from suit. See Santa Clara, 436 U.S. at
58. However, some courts have concluded that a tribe, by its actions, may consent to suit without express
congressional authority. For example, in United States v. Oregon, 657 F.2d 1009, 1013-16 (9th Cir. 1981), the
court held that an Indian tribe may consent to suit without express congressional authority, and that a tribe's
intervention in establishing its fishing rights constituted consent to the district court's jurisdiction to issue and
modify an equitable decree that encompassed tribal rights. See also McClendon v. United States, 885 F.2d 627,
629 n.1 (9th Cir. 1989) (stating that initiation of litigation by the United States in its capacity as tribal trustee
could potentially result in a waiver of tribal immunity despite the fact that the tribe was not a party to the suit);
Native Village of Eyak v. GC Contractors, 658 P.2d 756 (Alaska 1983) (determining that an Indian tribe waived
its sovereign immunity from suit without obtaining congressional authority by entering into an agreement
containing an arbitration clause).
........................................
[Headnote 6]
In this case, the tribe is the successor-in-interest to owners of Humboldt Decree water rights and has enjoyed
the benefits of the Decree. Until 1998, water commissioners entered the reservation without interference to
regulate the Humboldt River to ensure that all users received their decreed water rights. For the past fifty-five
years, the tribe allowed the water commissioners to travel on and across the reservation, and the tribe paid
assessment fees pursuant to the Decree for some period of time between the mid-1980s and early 1990s. Finally,
the deeds to the property the United States purchased for the tribe specifically mention the appurtenant water
rights and/or the Humboldt Decree. We conclude that the purchase of the reservation land subject to previously
adjudicated water rights constituted an express waiver of sovereign immunity, and that the tribe's actions in
benefiting from and abiding by the Humboldt Decree for more than five decades served to ratify this waiver. See
State Engineer v. South Fork Band of Te-Moak Tribe, 66 F. Supp. 2d at 1163, 1172 (D. Nev. 1999) (stating that
[i]f there remain[s] any doubt as to the United States['] express and unequivocal waiver in behalf of the Tribe,
in its initial purchase of the decreed rights, the Tribe's actions over the ensuing fifty years since the purchase of
their decreed water rights clearly demonstrate a continuing ratification of its initial waiver of immunity).
[Headnotes 7, 8]
We have recognized that the Sixth Judicial District Court has continuing jurisdiction over matters arising out
of the administration of the Humboldt Decree. State Engineer v. Sustacha, 108 Nev. 223, 826 P.2d 959 (1992).
The Sixth Judicial District Court has the authority to hold in contempt those who interfere with or frustrate the
actions of the state engineer or water commissioners in the administration of the Humboldt Decree. State v.
District Court, 52 Nev. 270, 286 P. 418 (1930).
[Headnote 9]
The tribe enjoys sovereign immunity, and thus, generally, cannot be subjected to the jurisdiction of a state
court. See, e.g., Snooks v. District Court, 112 Nev. 798, 919 P.2d 1064 (1996) (holding that a Nevada state court
had no jurisdiction to entertain a civil action filed by a non-Indian against an Indian for events that occurred on
Indian land); Patterson v. Four Rent, Inc., 101 Nev. 651, 707 P.2d 1147 (1985) (holding that a Nevada state
court had no jurisdiction over Indian claims to land allotments). However, here, as the purchase of the tribe's
reservation land subject to the Humboldt Decree, constituted a waiver of sovereign immunity, the Sixth Judicial
District Court is within its authority in exercising jurisdiction over the tribe concerning its alleged
interference with the administration of water rights pursuant to the Decree.
........................................
in exercising jurisdiction over the tribe concerning its alleged interference with the administration of water rights
pursuant to the Decree. To hold that the tribe is not amenable to the jurisdiction of the Sixth Judicial District
Court under these circumstances would frustrate the district court's authority over matters arising out of the
administration of the Decree.
[Headnote 10]
Finally, petitioners' contention that the district court lacks jurisdiction over the contempt proceeding because
the United States is an indispensable party and has not been joined is without merit. The actions giving rise to
the contempt proceedings are those of petitioners, not the United States. Petitioners, not the United States,
created and adopted the resolutions that frustrated and interfered with the water commissioners' efforts to
regulate the Humboldt River. Although the United States, as trustee, is the legal owner of the property and
accompanying water rights, see Appropriations Act for the Department of the Interior, Pub. L. No. 68-580, 43
Stat. 1141, 1149 (1925); Proclaiming Certain Lands in Nevada to be an Indian Reservation, 6 Fed. Reg. 1203
(1941), the interests of the United States will not be affected by the contempt proceedings. Consequently, we
conclude that the district court does have jurisdiction because the United States has not been joined as a party to
the contempt proceedings.
[Headnote 11]
A writ of prohibition may issue to arrest the proceedings of a district court exercising its judicial functions,
when such proceedings are in excess of the jurisdiction of the district court. NRS 34.320; see Budget
Rent-A-Car v. District Court, 108 Nev. 483, 835 P.2d 17 (1992). We have held that a writ of prohibition is an
appropriate vehicle through which to challenge the district court's improper exercise of jurisdiction. See Indiana
Ins. Co. v. District Court, 112 Nev. 949, 920 P.2d 514 (1996); Phelps v. District Court, 106 Nev. 917, 803 P.2d
1101 (1990).
Here, since petitioners waived their sovereign immunity, we conclude the Sixth Judicial District Court has
jurisdiction over petitioners in the underlying contempt proceedings. Consequently, we are not satisfied that this
court's intervention by way of extraordinary relief is warranted at this time. We therefore deny the petition.
3

__________

3
We grant the real parties in interest's motion to file supplemental authority and direct the clerk of this court
to file the supplemental authority appended to the motion. We have considered this supplemental authority in
resolving the instant petition.
____________
116 Nev. 812, 812 (2000) DeJesus v. Flick
KENNETH DeJESUS, Appellant, v. SHERRY FLICK, Respondent.
No. 30158
August 24, 2000 7 P.3d 459
Appeal from a judgment entered on a jury verdict and a district court order denying appellant's motion for a
new trial. Eighth Judicial District Court, Clark County; Jack Lehman, Judge.
Vehicle passenger brought personal injury action against driver of other vehicle, claiming she suffered head
and hand injuries during off-road travel when defendant forced the vehicle in which she was riding off the
freeway. After defendant stipulated to his liability, the district court entered judgment on jury's award of
$1,470,000.00 in damages and denied defendant's motion for a new trial. Defendant appealed. The supreme
court, Agosti, J., held that the improper personal opinions and golden rule arguments presented by passenger's
counsel during closing arguments warranted a new trial.
Reversed and remanded for a new trial.
Rose, C. J., with whom Shearing and Leavitt, JJ., agreed, dissented.
Beckley Singleton Jemison Cobeaga & List and Rex A. Jemison and Daniel F. Polsenberg, Las Vegas,
for Appellant.
Mainor & Harris and W. Randall Mainor, Las Vegas, for Respondent.
1. Damages.
Evidence of defendant motorist's intentional conduct during altercation, after defendant had forced the vehicle in which
plaintiff passenger was riding off the freeway, was admissible in passenger's personal injury action relating to injuries she
suffered when her head struck the vehicle and her hands were jammed against the dashboard during the off-road travel. The
evidence was relevant to passenger's claim for mental pain and suffering and was not unduly prejudicial. NRS 48.015, 48.035.
On review, the supreme court will not disturb the district court's ruling on a motion for a new trial absent an abuse of
discretion. NRCP 59.
3. New Trial.
To warrant reversal and a new trial on grounds of attorney misconduct of the prevailing party's attorney, the flavor of
misconduct must sufficiently permeate an entire proceeding to provide conviction that the jury was influenced by passion and
prejudice in reaching its verdict. NRCP 59(a)(2), (6).
4. New Trial.
The district court may grant a new trial based upon attorney misconduct without proof that the misconduct changed the
outcome of the first trial. NRCP 59(a)(2), (6).
........................................
Generally, a failure to object at trial to attorney misconduct precludes appellate review.
The inflammatory quality and sheer quantity of attorney misconduct warranted review, to prevent plain error, as to the closing
argument of counsel for vehicle passenger in personal injury action against driver of another vehicle who had forced passenger's
vehicle off the road, though the defendant had failed to object to the closing argument at trial.
7. Trial.
Closing argument of passenger's counsel in personal injury action against driver of other vehicle, in which counsel accused
defendant's medical expert of committing perjury and personally attacked the expert's credibility, told the jury how much he personally
disliked defendant because defendant nearly killed two people and because counsel had acquired some sense of plaintiff's suffering,
and gave his personal opinion that defense counsel was trying to get the jury to shortchange plaintiff's damages claim, violated the rule
prohibiting a lawyer from stating a personal opinion as to the justness of a cause, the credibility of a witness, or the culpability of a
civil litigant. SCR 173.
8. Trial.
Passenger's counsel made improper golden rule closing arguments in personal injury action against driver of other vehicle, where
counsel asked jurors to tap into feelings about passenger's fears in light of passenger's physical condition, asked jurors How do you
put a value on not using your fingers? after telling jury he would not trade the use of his own fingers for ten million dollars, and asked
jurors to send a message to law firms that try to prevent injured people from recovering for their damages.
9. New Trial.
The attorney misconduct of counsel for plaintiff passenger, in injecting his personal opinions and using improper golden rule
arguments during closing arguments in personal injury action against driver of other vehicle, including an argument inviting the jury to
send a message to all defense attorneys who try to shortchange injured people, warranted a new trial. Jury's award of $1,470,000.00
must have been based on passion or prejudice, because the medical expert testimony regarding passenger's injuries was conflicting and
the award far exceeded the damages passenger had sought. NRCP 59(a)(2), (6).
OPINION
This appeal is from a final judgment pursuant to a jury verdict and a subsequent order denying a new
trial. The jury awarded respondent $1,470,000.00, substantially more than she requested, in a personal
injury action arising out of an altercation on a Las Vegas freeway. The primary question presented on
appeal is whether misconduct by the plaintiff's attorney so permeated the proceedings that it
improperly influenced the jury,
........................................
proceedings that it improperly influenced the jury, thereby warranting a new trial under NRCP 59(a). We
conclude that it did; therefore, we reverse the district court's judgment and order and remand for a new trial on
damages.
FACTS
In June 1992 respondent Sherry Flick was riding as a passenger in a vehicle driven by her sister, Julie
Flick. As they proceeded southbound on Interstate 15 in Las Vegas, appellant Kenneth DeJesus tailgated the
Flick vehicle, then moved into its lane and forced it off the roadway into a ravine in the freeway median. The
off-road travel cracked the front axle of the Flick vehicle. DeJesus stopped, got out of his vehicle, pounded his
fists on the windshield of the Flick vehicle and made threatening gestures. DeJesus was cited for misdemeanor
assault, and later pleaded guilty to the offense.
Sherry Flick filed a personal injury action against DeJesus, claiming negligence.
1
DeJesus rejected an
offer to settle for $100,000.00; however, he stipulated to liability, so the only issue for trial was Flick's
damages. Consequently, most trial testimony related to the nature and extent of Flick's injuries.
Flick's medical experts, Dr. Edward N. Fishman and Dr. John Sterling Ford, testified that Flick sustained
permanent brain and nerve damage when, during the accident, her head struck the vehicle and she jammed her
hands against the dashboard. The brain damage caused Flick to suffer from headaches, dizzy episodes,
blackouts, memory loss and neck pain, while the nerve damage caused numbness and tingling in Flick's hands,
and curling of her outer fingers in a claw-like manner. Dr. Ford testified he was not able to locate the head
injury precisely, but it appeared that the balance organ in the inner ear had been damaged. He also testified
there was little hope that Flick's dizziness and blackout spells would cease, as they had persisted for four years,
and that Flick's carpal tunnel syndrome was not likely to improve, as it was getting worse. Flick's sister, Julie,
testified that these problems limited Flick's ability to drive and to work.
In contrast, DeJesus's medical experts, Dr. David Oliveri and Dr. Gerald Dunn, testified that the accident
did not cause Flick's symptoms and that Flick's medical records did not indicate that she had a brain disorder
until one year after the accident. Another physician, Dr. Robert Voy, testified that he treated Flick before the
accident for kidney infections, which caused symptoms similar to those complained of after the accident:
specifically, nausea, headaches, dizziness and blackout spells or momentary lapses of
consciousness.
__________

1
Flick also named her sister Julie as a defendant, but settled with her before trial for $10,000.00.
........................................
headaches, dizziness and blackout spells or momentary lapses of consciousness.
Flick's attorney, W. Randall Mainor, presented an emotional and provocative closing argument to the jury,
and he injected his personal life and opinions into this argument. Among other things, Mainor personally
vouched for the justness of his cause, talked about his grandchildren, his career with the FBI, his twenty years'
experience as a trial lawyer, and even cried during his closing argument. Mainor expressed his disdain for
DeJesus, said he was in a better position than the jury to know Flick's suffering and stated he would not trade the
use of his own fingers for ten million dollars. In painting a negative image of DeJesus's medical experts, Mainor
informed the jury that Drs. Dunn and Oliveri were motivated to testify for DeJesus solely by money and that, in
his opinion, Dr. Oliveri lied and the jury could discard his testimony in a garbage can. Finally, Mainor invited
the jury to punish defense counsel and all civil defense attorneys with its verdict.
The jury returned a verdict of $1,470,000.00. The award included $100,000.00 for future medical expenses,
far in excess of the $21,000.00
2
supported by the evidence and well in excess of counsel's request for
$30,000.00 to $35,000.00, and $300,000.00 for future loss of income. The award also included $1,000,000.00
for future pain and suffering, approximately twice the amount counsel requested.
[Headnote 1]
DeJesus moved for a new trial, claiming that Mainor's misconduct inflamed the jury's passions and
prejudiced the jury's verdict. The district court denied the motion, concluding that substantial evidence
supported the verdict. DeJesus appeals.
3

DISCUSSION
[Headnote 2]
Under NRCP 59(a)(2) and (6), a district court may grant a new trial based on [m]isconduct of the jury or
prevailing party or when it appears that "[e]xcessive damages . . . have been given under
the influence of passion or prejudice."
__________

2
Letters by Flick's experts, Dr. Fishman and Dr. Ford, indicated that Flick's future medical expenses could
reach $21,000.00.

3
DeJesus also contends that a new trial is warranted because the district court abused its discretion by
admitting evidence of DeJesus's intentional conduct during the freeway altercation, as it was irrelevant and
prejudicial. We disagree. We conclude that the district court did not abuse its discretion in admitting this
evidence as relevant to Flick's claim for mental pain and suffering. See Southern Pac. Transp. Co. v. Fitzgerald,
94 Nev. 241, 243, 577 P.2d 1234, 1235 (1978) (noting that a district court has broad discretion in deciding
whether evidence is admissible); NRS 48.015 (defining relevant evidence); NRS 48.035 (providing that relevant
evidence is admissible if its probative value is [not] substantially outweighed by the danger of unfair
prejudice).
........................................
when it appears that [e]xcessive damages . . . have been given under the influence of passion or prejudice. On
review, we will not disturb the district court's ruling on a motion for a new trial absent an abuse of discretion.
Southern Pac. Transp. Co. v. Fitzgerald, 94 Nev. 241, 244, 577 P.2d 1234, 1236 (1978).
[Headnotes 3, 4]
In Barrett v. Baird, 111 Nev. 1496, 1515, 908 P.2d 689, 702 (1995), we established the standard used to
determine whether reversal is warranted by misconduct of the prevailing party's attorney:
[t]o warrant reversal on grounds of attorney misconduct, the flavor of misconduct must sufficiently
permeate an entire proceeding to provide conviction that the jury was influenced by passion and
prejudice in reaching its verdict.' Kehr v. Smith Barney, Harris Upham & Co., Inc., 736 F.2d 1283,
1286 (9th Cir. 1984) (quoting Standard Oil of California v. Perkins, 347 F.2d 379, 388 (9th Cir. 1965)).
The district court may grant a new trial based upon such misconduct without proof that the misconduct changed
the outcome of the first trial. Id. (citing Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. Moquin, 283 U.S.
520, 521-22 (1931)).
[Headnotes 5, 6]
Initially, we note that DeJesus's attorney failed to object to most of Mainor's improper arguments. Generally,
a failure to object to attorney misconduct precludes review. Southern Pac. Transp., 94 Nev. at 244, 577 P.2d at
1235 (noting that [t]o preserve the contention for appellate review, specific objections must be made to
allegedly improper closing argument). Nevertheless, in light of the inflammatory quality and sheer quantity of
misconduct in this case, review is warranted to prevent plain error. See Bradley v. Romeo, 102 Nev. 103, 104,
716 P.2d 227, 228 (1986) (recognizing that [t]he ability of this court to consider relevant issues sua sponte in
order to prevent plain error is well established); see also Kaas v. Atlas Chem. Co., 623 So. 2d 525, 526 (Fla.
Dist. Ct. App. 1993) (attorney's expression of his personal opinion that an expert witness is a liar is misconduct
warranting a new trial, and no objection is required because such arguments fall squarely within that category of
fundamental error in which the basic right to a fair trial has been fatally compromised); Sadler v. Arizona Flour
Mills Co., 121 P.2d 412, 413 (Ariz. Ct. App. 1942) (when prevailing party's attorney's misconduct during
argument is a ground for vacating the verdict, trial court may grant a new trial despite the absence of any
objection).
........................................
[Headnotes 7, 8]
Many of Mainor's arguments to the jury far exceeded the boundaries of acceptable professional conduct. The
record is replete with examples; the following excerpts illustrate the level of impropriety that Mainor exhibited.
To begin, Mainor inappropriately accused DeJesus's expert witness, Dr. Oliveri, of committing perjury and
personally attacked his credibility:
I guarantee you if I'd have hired Oliveri, you'd have heard that [Flick] had all these problems. I guarantee
you that. If I'd have given him fifteen hundred bucks ($1500.00), he'd have come in and he would have
been able to concur with Ford [Flick's expert]. That's the way it works. That's the real world. See, you
folks don't know that. But I've been doing this for twenty years and that's the way it's done. Andand
what they try to do is influence jurors by this nonsense, these IMEs. They're not independent of anything.
They are biased and prejudiced against people who are hurt.
. . . .
[T]he reason why I put [Flick's] dad on for the one question, it was to merely show you folks that Oliveri
does notdid not tell the truth. I knew I could . . . present evidence that he wasn't qualified in what he
was saying and I knew his opinions wouldn't hold any water, but I wanted you toI wanted you to look
at him and question his truthfulness.
I was going to have [Flick's dad] tell more about what he observed there, but all that would have done, I
think, is make Oliveri look a little more stupid than I'd already done, and I didn't think that was necessary.
. . . [T]he issue is was [Oliveri] telling the truth and the answer is, no, he wasn't.
You're at liberty, if you want, to take Oliveri's testimony and tear it up and throw it in the garbage can
because I think he lied on the stand, didn't necessarily lie but didn't totally tell the truth. . . . He violated
his oath because he told the truth but he didn't tell the whole truth, and he told a few things other than the
truth. His testimony isis not credible in my estimation.
Mainor improperly interjected his personal opinions about the defendant. He told the jury how much he
personally disliked DeJesus because DeJesus nearly killed two people and because he had acquired some sense
of Flick's suffering during preparation for trial:
I have a hard time liking this man. He nearly killed a couple of people. And, you know, I'm not sure that I
accept his repentance.
........................................
repentance. I have a forgiving heart. I think I can do that. But I can tell you, I don't like him. And the
reason why I don't is because you guys have only seen [Flick] for four days. I've seen her for nearly two
years. I've seen her a lot. And you got a little bit of a sense of what she's been going through. I have a
much greater sense of what she's gone through cause I've been with her and been with her family.
Mainor improperly gave his personal opinion as to the justness of Flick's cause, and that of other plaintiffs
claiming injuries. Although he stated to the jury that the case was not a crusade for him, he explained that it was
close to a crusade because defense counsel was trying to get the jury to shortchange Flick's damage claim. Thus,
Mainor asked the jury to send a message to defense firms in town:
What I'd like the message to be to this law firm and to other law firms is, dang it, when someone is hurt,
pay them, pay them what's reasonable and let's go on with life. But if you let them get away with this, if
you let them get away with bringing some clown like Oliveri in here to try to convince the jury thatthat
she's not hurt, they'll keep doing that. . . . that's the way the game is played, . . . that's what happens, that's
what the power brokers of this world do to people like you.
Mainor also impermissibly asked the jurors to place themselves in Flick's position:
I want you men to listen to these women because . . . there's things that a woman experiences that you
don't . . . . [Y]ou're going to be able to tap in a little bit to their feelings, I think, as to fear. . . . [Flick's]
afraid to be alone. She's afraid to take a bath because if she gets in the bathtub and she's sitting there
enjoying a bath and has one of these things, she'd go in the water and she's dead. There's just hundreds of
things like that. She's afraid . . . that if she gets married . . . to have a baby. I mean, think of . . . the human
suffering that would occur if she gets pregnant and falls down and loses her baby or, worse yet, drops her
baby and hurts her baby.
After summarizing the evidence regarding medical expenses and lost income, Mainor told the jury the hard
part would be calculating fair and reasonable compensation for Flick's pain and suffering, and lost job
opportunities. Mainor indicated he would not trade places with Flick for ten million dollars and asked the jury:
........................................
How do you compensatewell, how do you put a value on not using your fingers? I don't know. I
mean, I don't know how you do that. . . . I wouldn't take ten million dollars if I had to do this. I like to
play golf once in awhile. And if I couldn't play golf, I mean, I wouldn't die but II just would not do
that.
All of these arguments, and others not included here, were improper and inflammatory, and constituted
egregious misconduct. Mainor's attack on Dr. Oliveri, as well as DeJesus, and his commentary on the virtues of
Flick's cause, blatantly violated SCR 173, which provides that [a] lawyer shall not . . . state a personal opinion
as to the justness of a cause, the credibility of a witness, [or] the culpability of a civil litigant. See Yates v.
State, 103 Nev. 200, 204, 734 P.2d 1252, 1255 (1987) (improper to characterize a doctor's testimony as
melarky, outright fraud or to accuse the doctor of crawl[ing] up on the witness stand); Sipsas v. State, 102
Nev. 119, 125, 716 P.2d 231, 234 (1986) (improper to call a medical expert a hired gun from Hot Tub
Country and a living example of Lincoln's law [who] can fool all of the people enough of the time); Owens v.
State, 96 Nev. 880, 886, 620 P.2d 1236, 1239 (1980) (improper to argue that I was brought up to believe that
there is some good in all of us. For the life of me, on the evidence presented to me, I can't see the good in [this
defendant]).
Further, Mainor impermissibly asked the jurors to place themselves in Flick's position when he asked them to
tap into feelings about Flick's fears, in light of her physical condition, and to send a message to law firms
that try to prevent injured persons from recovering (that's what the power brokers of this world do to people
like you). We have previously held that such golden rule arguments are forbidden because they interfere with
the jury's objectivity. See Boyd v. Pernicano, 79 Nev. 356, 358, 385 P.2d 342, 343 (1963) (improper to ask the
jurors to place themselves in the shoes of the victim because such argument interferes with the objectivity of the
jury); see also DuBois v. Grant, 108 Nev. 478, 481, 835 P.2d 14, 16 (1992) (golden rule argument is the
impermissible suggestion that the jurors trade places with the victim); McGuire v. State, 100 Nev. 153, 158, 677
P.2d 1060, 1064 (1984).
With respect to his power broker message, the fact that Mainor did not expressly remind the jury that Flick
is people like you does not save him from a violation of the golden rule. He clearly asked the jurors to allow
such recovery as they would wish if in the same position. Moreover, Mainor's testimony during his argument,
that he personally would not want to trade ten million dollars for the use of his fingers, violated the
golden rule.
........................................
ten million dollars for the use of his fingers, violated the golden rule. While making this argument, he asked the
jurors, How do you put a value on not using your fingers? He thus invited the jury to agree that neither would
they make such a trade.
[Headnote 9]
Individually, Mainor's inappropriate remarks violated well-established standards of professional conduct.
Taken cumulatively, Mainor's improper arguments so thoroughly permeated the proceeding that we are
convinced they tainted the entire trial and resulted in a jury verdict that was the product of passion and prejudice.
The $1,470,000.00 verdict plainly reflects the influence of counsel's improper arguments. There is simply no
other explanation for it, particularly in light of the conflicting expert testimony regarding Flick's injuries.
4
The
award far exceeds what counsel requested, and there is no objective basis in the record to support it.
5
It is
apparent that the jury accepted Mainor's improper invitation to punish the power brokers and send a message
to all the defense attorneys who try to shortchange people like Flick and themselves. Given Mainor's
impropriety, DeJesus was deprived of a fair trial.
6

We therefore conclude that the district court abused its discretion in denying a new trial under NRCP
59(a)(2), misconduct by the prevailing party, and NRCP 59(a)(6), excessive damages awarded under the
influence of passion or prejudice.
__________

4
See Boyd, 79 Nev. at 359, 385 P.2d at 343 (concluding that counsel's inappropriate statements are given
more weight when a notable conflict in the evidence exists).

5
Counsel argued that Flick's future medical expenses would range between $30,000.00 and $35,000.00, but
he miscalculated the total sum supported by the medical evidence; as previously noted, the evidence submitted to
the jury supports an award of $21,000.00, at most. The jury disregarded the evidence and awarded Flick
$100,000.00 for future medical expenses. Similarly, depending on the method of calculation used, counsel asked
for $400,000.00 to $630,000.00 for Flick's future pain and suffering. The jury awarded $1,000,000.00.

6
The dissent offers as a possible alternative explanation for the unreliable verdict, that it was solely the result
of the jurors' negative reaction to DeJesus's road rage conduct. After reading what is characterized in the
concurring opinion as a record replete with instances of serious misconduct by [Mainor] during the
summation, one cannot accept the dissent's theory. Of course, DeJesus's conduct was deplorable. And Mainor
impermissibly capitalized on those facts to inflame the jury and to incite the jury to decide this case out of moral
indignation against DeJesus and a desire to punish him. The verdict was in no way reliable as a reflection of the
value of Sherry Flick's case.
........................................
Accordingly, we reverse the district court's judgment and remand for a new trial on damages.
7

Young and Becker, JJ., concur.
Papez, D. J., concurring:
The record in this case is replete with instances of serious misconduct by plaintiff's counsel during
summation. Rather than isolated instances of misconduct as the dissent suggests, it appears to me that
plaintiff's counsel, an accomplished trial attorney with over twenty years of experience, strayed across the
permissible boundaries of argument with calculation and purpose. That purpose was realized in a verdict
returned by the jury far in excess of what plaintiff requested. I believe the verdict was the product of counsel's
calculated, repeated and seriously improper argument to the jury.
Without question, the facts of this case are upsetting, and naturally evoke sympathy for plaintiff and anger
toward defendant. A young woman's health and life have been drastically altered because of the acts of the
defendant. Plaintiff deserves to be and should be compensated for these damages. Counsel's zeal for his client's
cause does not, however, allow for departure from the ethical and procedural rules of fair play. Because the
amount of compensation owed to plaintiff is in dispute, a jury in a neutral and impartial forum, free from passion
or prejudice, must decide the damage claim.
As stated in the Hamline Law Review, in an article entitled Summation At The Border: Serious Misconduct
In Final Argument In Civil Trials:
One speculates that litigators evaluate their own final argument misconduct, at least implicitly, by
subjective standards such as motive and intent. In moral evaluations, if the ends are good, one tends to be
more lenient when criticizing the means by which the ends were achieved. One may think, A mistake
was made, but he or she was trying to do the right thing.
Acts grounded in good motives tend to be treated more leniently than are acts grounded in bad
motiveshe or she was a good person, even if he or she did a bad thing. One would expect that litigators'
evaluations of their own final argument misconduct to be consciously or subconsciously
colored by the overall "goodness" of their client or their claim,
__________

7
The Honorable Dan L. Papez, Judge of the Seventh Judicial District Court, was designated by the Governor
to sit in place of The Honorable A. William Maupin, Justice. Nev. Const. art. 6, 4.
........................................
argument misconduct to be consciously or subconsciously colored by the overall goodness of their
client or their claim, and the justness of the outcome sought. The litigator's platform is one of feeling
that his or her motives are good, his or her client's motives are good, his or her claim is good, and the
outcome he or she seeks is good. Conversely, a litigator may feel that opposing counsel is bad, the
opposing party is bad, or the claims or the underlying conduct, or both, are bad. One cannot fail to see
how annoying and aggravating it is to be faced with these factors, particularly in the focused, emotional
atmosphere of a trial. Serious misconduct in final argument in civil trials may be the result of excesses on
the part of well-intentioned counsel.
Nonetheless, the objective approach to serious misconduct in final argument is the correct approach.
Parties, whether popular or unpopular, must be permitted to make claims and defenses in a neutral and
impartial system. Serious misconduct in final argument can never be justified, not even with reference to
motive or intent. What matters the most is the type of conduct and its impact.
19 Hamline Law Review 179, 192-193 (1995).
Because of the serious nature of the misconduct and the obvious impact on the verdict, this matter should be
retried.
Another troubling aspect of this case is what the dissent calls a freewheeling atmosphere in which the case
was tried. Certainly it is the responsibility of counsel to make objections and seek rulings from the trial court to
prevent a freewheeling atmosphere from developing. In my opinion, when serious misconduct occurs and is
not met by an objection, a trial judge has an obligation to intervene sua sponte to protect the litigant's right to a
fair trial. See Sipas v. State, 102 Nev. 119, 125, 716 P.2d 231, 235 (1986). See also Casey v. Musgrave, 72 Nev.
31, 292 P.2d 1066 (1956) (a trial judge is charged with a superintending duty to regulate and control the course
of proceedings in a trial); Schreier v. Parker, 415 So. 2d 794 (Fla. Dist. Ct. App. 1982) (arguments in derogation
of professional conduct rules should not be condoned by a trial court, even absent objection); Wanner v.
Keenan, 317 N.E. 2d 114 (Ill. App. Ct. 1974) (the trial judge is responsible for the justice of his judgments and
has a duty to control the trial in order to ensure a just result); Paulsen v. Gateway Transportation Co., 252 N.E.
2d 406 (Ill. App. Ct. 1969) (if the argument of counsel is seriously prejudicial, the trial court sua sponte should
stop the argument and direct the jury not to consider it); N.Y. Central R.R. Co. v. Johnson, 279 U.S. 310 (1929)
(every litigation should be conducted fairly and impartially and the public interest requires that a trial
court sua sponte exercise its power and duty to protect litigants in their right to a verdict,
........................................
the public interest requires that a trial court sua sponte exercise its power and duty to protect litigants in their
right to a verdict, uninfluenced by the appeals of counsel to passion or prejudice).
If the trial judges of Nevada would aggressively intervene in instances of serious misconduct by counsel
where no objection is tendered, it would seem to me that appellate litigation in this area would be greatly
reduced.
Rose, C. J., with whom Shearing and Leavitt, JJ., agree, dissenting:
This is a case about the road rage conduct of Kenneth DeJesus that caused a substantial permanent brain
injury to Sherry Flick. The majority concludes that the jury's award be reversed because Sherry's attorney made
improper statements, despite the fact these statements were not objected to. I disagree. I believe that some of the
statements that were not objected to were not improper. I further believe that those statements that were
improper did not so pervade the trial with prejudice as to require the reversal of this case. I would therefore
affirm the judgment entered below, except for the award for future medical expenses, which I would reduce to an
amount supported by the evidence.
Sherry sustained serious injuries while riding as a passenger in a vehicle driven by her sister on the freeway.
Because DeJesus believed that Sherry's sister had cut him off in traffic, DeJesus began tailgating the Flick
vehicle. DeJesus then pulled ahead and cut the Flick vehicle off, forcing it into the dirt and bushes in the median.
The force of the impact with the median broke the axle of the Flick vehicle, disabling the car. Upon leaving his
vehicle, DeJesus leaned over the front hood of the Flick car, pounded his fists on the front windshield, and
demanded that Sherry and her sister exit their car. Sherry and her sister were paralyzed with fear, and Sherry
testified that DeJesus made a throat-slashing gesture signaling that he was going to cut my throat or kill me or
Julie or the people who were there.
DeJesus then left the scene of the accident, but later returned. Upon his return to the scene, DeJesus was cited
for misdemeanor assault for cutting off the Flick vehicle, and pleaded guilty to this charge. Thereafter, Flick
filed a negligence action against DeJesus.
Prior to trial, DeJesus's attorneys admitted liability, and then attempted to suppress the inflammatory facts
concerning DeJesus's conduct. The district court denied this attempt to conceal DeJesus's inflammatory acts, and
even the majority agrees that these facts were admissible and relevant to Sherry's physical and emotional injuries
caused by DeJesus.
........................................
Because of the inflammatory nature of DeJesus's conduct, I believe that it is more likely that the jury was
inflamed by his road rage, rather than Sherry's attorney's statements. Indeed, DeJesus's conduct was so egregious
that going into this trial, anyone could have predicted that the jury would give top dollar for any injuries it
believed Sherry sustained.
We will affirm a jury verdict that is alleged to be excessive provided it is supported by substantial evidence.
See Yamaha Motor Co. v. Arnoult, 114 Nev. 233, 955 P.2d 661 (1998). There was substantial, although
contradicting, evidence presented to support the jury's award of damages. Although DeJesus's experts opined
that Sherry did not have any serious injuries, Sherry's neurologist and medical expert testified that she had
sustained a moderate brain injury from the accident and would have periodic spells of dizziness and blackouts
for the rest of her life. Sherry's neurologist further testified that Sherry had permanently damaged the nerves in
her hands, resulting in numbness and the clawing of her fingers.
Shortly after the accident, Sherry testified that she would fall when she blacked out, resulting one time in
black eyes and another time in burns from hot asphalt on her hands, knees, and legs. Sherry further testified that
she was afraid to become a mother because she might black out and injure her baby, and that she was afraid she
would lose her driver's license and eventually be unable to drive because of her blackouts. While damages were
high in this matter, they nonetheless are supported by substantial evidence provided the jury believed the
physicians who testified in Sherry's favor. Again, when considering that Sherry's injuries were essentially the
product of road rage, a recent phenomenon that has many drivers fearing for their safety on the streets, the high
verdict in this case should have surprised no one.
1

In reviewing whether an attorney's improper statements affect the verdict, this court considers whether
Sherry's attorney's statements were so prejudicial and egregious that they infected the entire trial so that the
judgment could only be the result of that misconduct.
__________

1
DeJesus cites an offer of judgment made by Sherry to settle for $100,000.00. Offers of judgment are made
for several reasons and often have no relation to the value of the offering party's case. Specifically, offers are
often made for a defendant's insurance policy limits, but the insurance company is unwilling to pay the policy
limits to an injured plaintiff. By refusing to pay the policy limits, the risk of an excess verdict is transferred to
the insurance company. See, Green v. J.C. Penney Auto Ins. Co., 806 F.2d 759, 763-64 (7th Cir. 1986); 46A
C.J.S. Insurance 1584 (1993). While settlement negotiations are usually not part of the record on appeal, I
would suspect that Sherry's offer to settle for $100,000.00 was a demand for the policy limits and made to obtain
a strategical advantage once the insurance company refused to pay, and not made because Sherry thought
$100,000.00 was the value of her case.
........................................
misconduct. See Barrett v. Baird, 111 Nev. 1496, 908 P.2d 689 (1995). I conclude that the proceeding below
was not so prejudicial and egregious as to warrant reversal, and the high verdict was in all probability the result
of DeJesus's road rage conduct.
Preliminarily I note that several statements made in closing argument and characterized as improper do not
seem improper to me. Sherry's attorney argued that in considering future damages, the men on the jury should
consider the problems and emotional trauma Sherry would experience if she became pregnant. While perhaps
inartfully phrased, any concern that Sherry's attorney was asking the male jurors to put themselves in Sherry's
place could have been cured by an objection that would have simply resulted in Sherry's attorney rephrasing his
argument. Further, Sherry's attorney's statement that the jury should tap into Sherry's feelings of fear likewise is
not improper because it was a mere reference to the evidence presented, namely Sherry's testimony concerning
her fear, and not a request for the jurors to place themselves in Sherry's place.
At another point in closing argument, Sherry's attorney commented that the jury had the right to reject
Oliveri's medical testimony because his testimony was bought and paid for. I believe that this was a permissible
argument in light of both Oliveri's large fee and the starkly contradicting medical testimony presented by the
parties. First, during cross-examination of Dr. Oliveri, Sherry's attorney elicited the fact that he was charging a
total of $5000.00 for his testimony. Second, Dr. Oliveri's statement that Sherry was able to stand with her eyes
closed without losing her balance was directly contradicted by Sherry's father, who testified that Sherry fell
backwards when performing this test in Dr. Oliveri's presence. Third, Dr. Oliveri testified that Sherry's
symptoms were inconsistent with a brain injury, while Sherry's doctors testified to the contrary. It can be inferred
from the aforementioned evidence in the record that Dr. Oliveri's testimony was misleading and paid for by
excessive fees. I see nothing wrong with a party arguing that the medical testimony produced by the opposing
party was the result of something other than objective assessment where that party has produced contradicting
evidence.
I do agree with the majority, however, that the continuing argument by Sherry's attorney that this is how the
system works, how civil defense attorneys secure the desired testimony, and that the verdict should punish all
civil defense attorneys was improper in a negligence action where punitive damages are disallowed. However,
Sherry's attorney did not object to these arguments. Moreover, the record reveals that both plaintiff's and
defendant's attorneys permitted a lot of testimony and argument into evidence without objection, creating
a freewheeling atmosphere that the district court permitted.
........................................
without objection, creating a freewheeling atmosphere that the district court permitted.
In civil cases, we place great reliance on the advocacy system and require the attorneys for the parties to
present their case competently and to timely state all objections. If evidence or argument is not objected to, it
cannot be later claimed as grounds for reversal unless it can be determined that plain error occurred that
prejudiced and inflamed the jury.
Other courts have faced factual situations very similar to the one presented here, and these courts have
developed a rule that would better compliment our holding in Barrett v. Baird, 111 Nev. 1496, 908 P.2d 689
(1995). See Horn v. Atchison, Topeka and Santa Fe Ry. Co., 394 P.2d 561, 565 (Cal. 1964); Neumann v.
Bishop, 130 Cal. Rptr. 786, 811-12 (Ct. App. 1976); Budget Rent A Car Sys., Inc. v. Jana, 600 So. 2d 466,
467-68 (Fla. Dist. Ct. App. 1992).
In Horn, the California Supreme Court concluded that the remarks of plaintiff's counsel had created an
atmosphere of bias and prejudice that was manifestly calculated to deprive the defendant of a new trial. 394 P.2d
at 565. Despite this conclusion, the court affirmed the jury's verdict for plaintiff and held that the defendant had
waived his right to complain by failing to object:
Generally, a claim of misconduct is entitled to no consideration on appeal unless the record shows a
timely and proper objection and a request that the jury be admonished. The purpose of the rule requiring
the making of timely objections is remedial in nature, and seeks to give the court the opportunity to
admonish the jury, instruct counsel and forestall the accumulation of prejudice by repeated
improprieties, thus avoiding the necessity of a retrial. It is only in extreme cases that the court, when
acting promptly and speaking clearly and directly on the subject, cannot, by instructing the jury to
disregard such matters, correct the impropriety of the act of counsel and remove any effect his conduct or
remarks would otherwise have. In the absence of a timely objection the offended party is deemed to
have waived the claim of error through his participation in the atmosphere which produced the claim of
prejudice.
Horn, 394 P.2d at 565-66 (emphasis added) (citations omitted) (quoting Tingley v. Times-Mirror Co., 89 P.
1097, 1106 (Cal. 1907)).
Numerous other California courts have followed the holding in Horn and affirmed verdicts where there was
improper trial conduct to which the opposing attorney failed to object. For example, in Sabella v. Southern
Pacific Co., 449 P.2d 750, 754 {Cal. 1969),
........................................
in Sabella v. Southern Pacific Co., 449 P.2d 750, 754 (Cal. 1969), the court affirmed a verdict for plaintiff
despite the fact that plaintiff's counsel had accused the defense witnesses of committing perjury, appealed to the
jurors' sympathies through repeated references to both the defendant's wealth and plaintiff's lack of resources,
and made an improper golden rule argument.
Similarly, in Neumann, 130 Cal. Rptr. at 811-12, the court concluded that plaintiff's counsel had made
numerous improper arguments, including several improper golden rule arguments, an argument that pain and
suffering should be four times the special damages, and an erroneous argument that the defendant had a right to
indemnity. Despite this impropriety, the court affirmed the jury verdict and held that the defense counsel had
waived its claim of error by failing to object or by making an inadequate objection. See Neumann, 130 Cal. Rptr.
at 812. The court further concluded that the jury's award was not so grossly excessive as to shock the moral
sense so that the trial court as well as the jury can be deemed to have succumbed to passion or prejudice. Id. at
814.
The Florida courts, like California, have also recognized that the failure to object to an attorney's improper
argument in a civil case generally constitutes a waiver of the right to appeal this issue. In Budget Rent A Car
Systems, Inc. v. Jana, 600 So. 2d 466, 467- 68 (Fla. Dist. Ct. App. 1992), the court held that although the
plaintiff's attorney clearly made arguments in violation of the well known golden rule, review of this issue was
precluded, as the defense counsel did not object and the arguments made were not sinister:
This court has held that, absent contemporaneous objection, an improper comment made during
closing remarks will not support reversal. In [one Florida appellate case] this court held that failure to
object below to improper comments made in closing remarks constitutes a waiver of any right to
complain on appeal. It is only in those rare circumstances where the comments are of such sinister
influence as to constitute irreparable and fundamental error that the absence of objection will be
overlooked.
Id. at 467-68 (emphasis added) (citations omitted) (quoting LeRetilley v. Harris, 354 So. 2d 1213 (Fla. Dist. Ct.
App. 1978)).
As in California and Florida, our review should narrow where there is no objection in order to discourage the
needless waste of judicial resources required for a new trial. See generally McGuire v. State, 100 Nev. 153,
158-59, 677 P.2d 1060, 1065 (1984) (discussing the costs associated with attorney misconduct). Indeed, the
failure to object frustrates the district court's ability to admonish the jury and instruct
counsel so that it may forestall the accumulation of prejudice, thereby avoiding the
necessity of a new trial.
........................................
the failure to object frustrates the district court's ability to admonish the jury and instruct counsel so that it may
forestall the accumulation of prejudice, thereby avoiding the necessity of a new trial. See Horn, 394 P.2d at 565.
I am concerned that this case will increase appellate litigation. In the future, this court will be required to
review many more civil cases where improper argument is claimed but no objection was made at trial. Adopting
the rule espoused in Horn, Neumann, and Budget Rent A Car would prevent this situation from occurring.
Sherry sustained permanent brain damage from the road rage conduct of DeJesus. Substantial evidence
supported the admittedly high jury award. I am convinced, however, that if the jury was in any way inflamed,
such passion was caused by the conduct of DeJesus and not by a few improper statements made by Sherry's
attorney. I would affirm the verdict with the exception that I would reduce future medical expenses to the
evidence presented. Accordingly, I dissent to the majority opinion.
____________
116 Nev. 828, 828 (2000) English v. State
ROBERT BARNES ENGLISH, JR., Appellant, v. THE STATE OF NEVADA, Respondent.
No. 33055
August 24, 2000 9 P.3d 60
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of battery constituting
domestic violence while having two or more prior convictions of battery constituting domestic violence within
seven years. Second Judicial District Court, Washoe County; Steven P. Elliott, Judge.
Defendant was convicted in the district court on his plea of guilty to one count of battery constituting
domestic violence while having two or more prior convictions of battery constituting domestic violence within
seven years. Defendant appealed. The supreme court, Agosti, J., held that: (1) defendant's prior conviction for
domestic battery, which occurred prior to effective date of domestic violence enhancement law, could be used to
enhance penalty for defendant's present conviction for battery constituting domestic violence; and (2) documents
relating to defendant's prior conviction for domestic battery constituted sufficient evidence of defendant's prior
domestic battery conviction for enhancement purposes.
Affirmed.
Leavitt, J., with whom Rose, C. J., and Young, J., joined, dissented.
........................................
Appellant.
Alleging a prior conviction in a complaint or information where the state seeks to enhance the conviction from a misdemeanor to a
felony or increase the misdemeanor penalty comports with the procedural due process consideration of notice. U.S. Const. amend. 14.
Defendant's prior conviction for domestic battery, which occurred prior to effective date of domestic violence enhancement law,
could be used to enhance penalty for defendant's present conviction for battery constituting domestic violence. NRS 200.485.
3. Statutes.
No rule of statutory construction requires that a penal statute be strained and distorted to exclude conduct clearly intended to be
within its scope.
4. Statutes.
A statute should be construed in light of the policy and the spirit of the law, and the interpretation should avoid absurd results.
5. Statutes.
When interpreting a statute, supreme court resolves any doubt as to legislative intent in favor of what is reasonable, and against
what is unreasonable.
Criminal complaint, signed waiver of rights form, and two pages of handwritten notes, which appeared to be municipal court
clerk's notes of proceedings, taken as a whole, constituted sufficient evidence of defendant's prior domestic battery conviction for
enhancement purposes, and thus prior conviction could be used to enhance defendant's subsequent conviction for battery constituting
domestic violence. NRS 200.485.
OPINION
The issues raised in this appeal are: (1) whether convictions for battery constituting domestic violence
occurring prior to January 1, 1998, may be used to enhance the penalty of a subsequent conviction for
battery constituting domestic violence under NRS 200.485; and (2) whether the evidence of a prior
misdemeanor conviction demonstrated its constitutional validity for enhancement purposes. We conclude
that convictions occurring prior to January 1, 1998, may be used to enhance the penalty of the appellant's
present conviction. We also conclude that the district court properly determined that the evidence
presented relating to appellant's prior conviction demonstrated the constitutional validity
of that conviction for enhancement purposes.
........................................
properly determined that the evidence presented relating to appellant's prior conviction demonstrated the
constitutional validity of that conviction for enhancement purposes. We therefore affirm appellant's conviction.
FACTS
On May 13, 1998, appellant Robert Barnes English, Jr., battered his live-in girlfriend. He was charged by
criminal information with a felony crime that was denominated as domestic battery, a violation of NRS 33.018,
NRS 200.481 and NRS 200.485. To enhance English's crime to a felony under NRS 200.485, the information
alleged that English was previously convicted of battery constituting domestic violence on September 28, 1995
and February 11, 1998.
[Headnote 1]
After English pleaded guilty, the prosecutor provided the district court with copies of records concerning
English's prior domestic battery convictions.
1
English conceded that the documents evidencing his February
1998 conviction were valid proof of a prior conviction for enhancement purposes. However, he challenged the
use of the documents relating to his September 1995 conviction. English argued that this conviction could not
be used to enhance the penalty of his present offense because NRS 200.485 does not permit convictions that
occurred prior to January 1, 1998, to be used for enhancement purposes. He further argued that this conviction
could not be used for enhancement purposes because the documents provided to the district court do not show
that constitutional principles were respected in the prior misdemeanor proceedings.
__________

1
The original criminal complaint alleged that English had previously been convicted of an offense
constituting domestic battery on January 5, 1995, September 28, 1995, August 9, 1996, and February 11, 1998.
The subsequent information filed against English alleged only the September 1995 and February 1998
convictions. The State presented documents at the arraignment evidencing all four of English's prior
misdemeanor convictions, but the district court only considered the documents relating to the convictions
alleged in the complaint. On appeal, the State argues that the district court should have considered the records
relating to all four convictions because unlike NRS 484.3792(2), which requires that the prior offenses of
driving under the influence must be alleged in the complaint, indictment or information in order for such
offenses to be used to enhance the penalty for a subsequent conviction, NRS 200.485 does not contain such a
requirement. Because we conclude that English's September 1995 conviction is constitutionally valid for
enhancement purposes, we need not address the State's argument at this time, except to observe, in passing, that
alleging a prior conviction in a complaint or information where the state seeks to enhance the conviction from a
misdemeanor to a felony or increase the misdemeanor penalty comports with the procedural due process
consideration of notice.
........................................
The district court disagreed and used English's September 1995 and February 1998 convictions to enhance to
a felony the conviction from which he now appeals. The district court entered judgment against English and
sentenced him to imprisonment for a minimum term of twelve months to a maximum term of thirty-six months,
to run concurrently with any sentence English was currently serving. English then filed this appeal.
DISCUSSION
Whether a conviction for battery constituting domestic violence occurring prior to January 1, 1998, may be
used to enhance the penalty of the present conviction under NRS 200.485
[Headnote 2]
In July 1997, the Nevada Legislature passed Assembly Bill 170 (the domestic violence enhancement law),
which sought to ensure the effective prosecution of crimes involving domestic violence. 1997 Nev. Stat., ch.
476, 1, at 1799. Section 18 of that bill increases the severity of the offense and consequent penalty for battery
constituting domestic violence from a misdemeanor to a felony when the defendant has two prior convictions for
the same offense within the immediately preceding seven years. Id., 18, at 1811-12. Section 18 is codified at
NRS 200.485, which provides, in part:
1. Unless a greater penalty is provided pursuant to NRS 200.481, a person convicted of a battery that
constitutes domestic violence pursuant to NRS 33.018:
(a) For the first offense within the immediately preceding 7 years, is guilty of a misdemeanor . . . .
(b) For the second offense within the immediately preceding 7 years, is guilty of a misdemeanor . . . .
(c) For the third and any subsequent offense within the immediately preceding 7 years, is guilty of a
category C felony and shall be punished as provided in NRS 193.130.
This provision of the domestic violence enhancement law took effect on January 1, 1998. 1997 Nev. Stat.,
ch. 476, 34(4), at 1821. Section 32 of the domestic violence enhancement law provides that [s]ections 18 and
19 of this act do not apply to offenses that are committed before January 1, 1998. 1997 Nev. Stat., ch. 476,
32, at 1821 (emphasis added).
English contends that this latter provision is ambiguous because it could be interpreted to have two different
meanings. One interpretation is that offenses committed before January 1, 1998, cannot be enhanced using
prior convictions. The other interpretation is that convictions which occurred before January 1, 1998, cannot be
used to enhance the penalty of a present conviction.
........................................
English asks this court to conclude that the legislature intended the latter meaning. We must decline English's
request.
[Headnotes 3-5]
English argues that because the statute is ambiguous, it must be construed in his favor. See Shrader v. State,
101 Nev. 499, 505- 06, 706 P.2d 834, 838 (1985) (criminal statutes must be liberally construed in favor of the
accused when resolving ambiguities). However, no rule of construction requires that a penal statute be strained
and distorted to exclude conduct clearly intended to be within its scope. Polson v. State, 108 Nev. 1044, 1047
n.4, 843 P.2d 825, 827 n.4 (1992). A statute should be construed in light of the policy and the spirit of the law,
and the interpretation should avoid absurd results. Hunt v. Warden, 111 Nev. 1284, 1285, 903 P.2d 826, 827
(1995). When interpreting a statute, this court resolves any doubt as to legislative intent in favor of what is
reasonable, and against what is unreasonable. Id. English's claim that the statute is ambiguous and consequent
request for construction of the statute in his favor leads to a result which is strained and distorted. Therefore, we
decline to interpret section 32 of the domestic violence enhancement law to mean that offenses occurring prior to
January 1, 1998, cannot be used to enhance a current conviction.
The legislature intended as a matter of public policy that convictions of battery constituting domestic
violence occurring before the law's effective date could be used for enhancement purposes. Assemblywoman
Genie Ohrenschall testified before the Senate Committee on Judiciary that domestic violence was characterized
particularly by its repetitive nature and that the domestic violence enhancement law sought to reduce the high
rate of recidivism by providing a comprehensive program to combat the problem of domestic violence.
2
Ohrenschall stressed that all the efforts under this bill were to prevent the third offense from ever happening.
3
It is difficult to reconcile Assemblywoman Orenschall's remarks with the interpretation of the statute proffered
by English.
It is evident that in enacting section 32 of the domestic violence law, the legislature intended to preclude an
offense that was committed prior to January 1, 1998, from being enhanced using prior convictions. For example,
a battery constituting domestic violence which occurred on December 31, 1997 (New Year's Eve), or at a 1997
holiday party cannot be enhanced using prior convictions even though the state filed its complaint after January
1, 1998.
__________

2
Hearing on A.B. 170 Before the Senate Comm. on Judiciary, 69th Leg. at 235-36 (Nev., June 27, 1997).

3
Id. at 239, 240.
........................................
Accordingly, we conclude that the legislature intended that domestic battery convictions occurring before the
effective date of the domestic violence enhancement law may be used for enhancement purposes. English
provides no reason, nor can we discern any reason, why the legislature would allow current habitual domestic
batterers to avoid immediate enhancement penalties once the domestic violence enhancement law took effect.
This law places repeat offenders on notice that they will be charged with a felony if their next charge of domestic
battery constitutes a third offense. It would be unreasonable to interpret the law in a way that would allow
current habitual domestic batterers to commit two more offenses after January 1, 1998, before their next
conviction could be enhanced to a felony under NRS 200.485(1)(c).
To further support his position, English analogizes NRS 200.485 to Nevada's current DUI enhancement law,
as amended in 1983.
4
Specifically, English points to section 35 of A.B. 167 (DUI bill), wherein the
legislature provided July 1, 1976, as a starting date from which prior DUI convictions could be used to enhance
the penalty for a subsequent conviction. That section reads:
In extending to 7 years the period during which prior [DUI] offenses may be considered, the legislature
intends that any offense as defined in subsection 6 of section 10 of this act which occurred on or after
July 1, 1976, and is evidenced by a conviction be considered a prior offense for the purposes of this act.
1983 Nev. Stat., ch. 426, 35, at 1089. English contends that if the legislature had intended that domestic
battery offenses occurring before January 1, 1998, be used to enhance the penalty for a subsequent offense, it
would have similarly included a starting date.
We conclude that English's argument is without merit. In amending the DUI enhancement law in 1983, the
legislature extended from five to seven years the period from which prior DUI convictions could be considered
for enhancement purposes.
5
By providing a starting date in section 35 of the DUI bill the legislature merely
sought to avoid any confusion created by the extension of time from five to seven years.
__________

4
See NRS 484.3792 which provides, in part:
1. A person who violates the provisions of NRS 484.379:
(a) For the first offense within 7 years, is guilty of a misdemeanor . . . .
(b) For a second offense within 7 years, is guilty of a misdemeanor . . . .
(c) For a third or subsequent offense within 7 years, is guilty of a category B felony . . . .

5
1983 Nev. Stat., ch. 426, 8, at 1068-69 deleted the subsections of NRS 484.379 which provided enhanced
penalties for DUI convictions when the
........................................
islature merely sought to avoid any confusion created by the extension of time from five to seven years.
6
By
contrast, in enacting the domestic violence enhancement law, the legislature did not need to provide a starting
date to avoid confusion. Since the domestic violence enhancement law took effect on January 1, 1998, it
necessarily follows that January 1, 1991, is the starting date from which prior convictions can be used for
enhancement purposes.
Indeed, by providing a starting date seven years before the amendments to the DUI enhancement law took
effect, the legislature clearly revealed its intention that DUI convictions occurring prior to the effective date of
that law be considered for enhancement purposes. Because the domestic violence enhancement law was modeled
after the DUI bill,
7
domestic violence convictions which occurred prior to the effective date of the domestic
violence enhancement law must similarly be considered for enhancement purposes. See State Farm Mut. v.
Comm'r of Ins., 114 Nev. 535, 541, 958 P.2d 733, 737 (1998) (noting that the meaning of a statute may be
determined by referring to laws which are in pari materia' i.e., when they relate to the same person or things,
to the same class of persons or things, or have the same purpose or object).
English also contends that any conviction prior to the enactment of the statute could not be used for
enhancement purposes because the offense of battery constituting domestic violence did not exist prior to the
effective date of the domestic violence enhancement law. The definition and penalties for battery constituting
domestic violence is codified at NRS 200.485 which took effect on January 1, 1998. Subsection (6)(b) of that
statute provides that:
Offense includes a battery which constitutes domestic violence pursuant to NRS 33.018 or a violation
of the law of any other jurisdiction that prohibits the same or similar conduct.
NRS 33.018 provides that domestic violence occurs when a person commits a battery against or upon one of the
following persons:
__________
defendant had prior DUI convictions in the preceding five years. 1983 Nev. Stat., ch. 426, 10, at 1070-71
added NRS 484.3792 which provides enhanced penalties for DUI convictions when the defendant has prior DUI
convictions within the preceding seven years.

6
See Hearing on A.B. 167 Before the Senate Comm. on Transp., the Assembly Comm. on Transp., and the
Assembly Comm. on Judiciary, 62nd Leg. at 19 (Nev., February 17, 1983) (stating that the DUI legislative
subcommittee believed that the five-year prior offense period should be extended to seven years).

7
Hearing on A.B. 170 Before the Senate Comm. on Judiciary, 69th Leg. at 239, 244 (Nev., June 27, 1997).
........................................
his spouse, former spouse, any other person to whom he is related by blood or marriage, a person with
whom he is or was actually residing, a person with whom he has had or is having a dating relationship,
person with whom he has a child in common, the minor child of any of those persons or his minor child.
The legislature did not create a new crime by the passage of this statute. At the time English committed his
prior offense in 1995, the former version of NRS 200.481, the general battery statute, subjected those who
committed a battery upon someone with whom they had a domestic relationship to the possibility of an increased
penalty. Former NRS 200.481(2)(a) gave the sentencing court the option of requiring the defendant to
participate in counseling if the defendant committed the battery upon:
his spouse, former spouse, a person to whom he is related by blood, a person with whom he is or was
actually residing or with whom he has a child in common, his minor child or a minor child of that person.
1987 Nev. Stat., ch. 232, 1, at 515. This is virtually the same definition of a battery constituting domestic
violence pursuant to NRS 33.018. By enacting the domestic violence enhancement law, the legislature simply
moved the provisions concerning the crime of battery constituting domestic violence from NRS 200.481 to
200.485 and provided new enhanced penalties when the defendant had prior convictions. We therefore disagree
with English's assertion that the legislature created a new crime by enacting the domestic violence enhancement
law.
Whether the documents evidencing English's September 1995 misdemeanor conviction were adequate for
enhancement purposes
[Headnote 6]
English also contends that the documents evidencing his September 1995 conviction fail to show that
constitutional principles were respected in obtaining that conviction, and that it is unclear if he was represented
by counsel or waived his right to counsel. We conclude that these contentions lack merit.
In Dressler v. State, 107 Nev. 686, 697, 819 P.2d 1288, 1295 (1991), this court held that in order to rely on
a prior misdemeanor judgment of conviction for enhancement purposes, the state had the burden of proving
either that the defendant was represented by counsel or validly waived that right, and that the spirit of
constitutional principles was respected in the prior misdemeanor proceedings.
Documents relating to English's September 1995 conviction included the criminal complaint, a signed
waiver of rights form, and two pages of handwritten notes,
........................................
and two pages of handwritten notes, which appear to be the municipal court's notes of the proceedings. We
consider this sufficient evidence of English's 1995 conviction, when taken as a whole and in consideration of the
realities of misdemeanor prosecutions. See Pettipas v. State, 106 Nev. 377, 794 P.2d 705 (1990) (formal, written
judgment of conviction not required if other documents, such as docket sheets, evidence the conviction); Isom v.
State, 105 Nev. 391, 776 P.2d 543 (1989) (citation and plea are sufficient evidence of conviction; complaint,
plea, and sentence are sufficient evidence of conviction).
We conclude that the district court did not err by finding that these documents evidenced English's
September 1995 conviction by a preponderance of the evidence. See Dressler, 107 Nev. at 693, 819 P.2d at
1293 (question of constitutionality of prior conviction decided by a preponderance of the evidence).
The municipal court notes indicate that English pleaded guilty to domestic battery in the Reno Municipal
Court on September 26, 1995. Although the waiver of rights form does not have a case number on it, English
signed this form on the same day. Therefore, it appears that the waiver form relates to the same case. The waiver
form is also signed by English's attorney. The municipal court notes also indicate that English was sentenced for
this offense on September 28, 1995. The court notes indicate that English's attorney was present at his
sentencing hearing. Together, these documents constitute sufficient evidence of English's September 1995
conviction of domestic battery for enhancement purposes.
CONCLUSION
We conclude that a conviction for battery constituting domestic violence occurring prior to January 1, 1998,
may be used to enhance a subsequent conviction of battery constituting domestic violence under NRS 200.485.
We further conclude that the documents relating to English's September 1995 conviction were adequate to show
that English was represented by counsel and that the spirit of constitutional principles was respected in the
prior misdemeanor proceedings. Accordingly, we affirm English's judgment of conviction.
Shearing, J., concurs.
Maupin, J., with whom Becker, J., agrees, concurring:
Effective January 1, 1998, NRS 200.485 prescribes the penalties attendant to convictions for violations of
NRS 33.018.
........................................
1. Unless a greater penalty is provided pursuant to NRS 200.481, a person convicted of a battery that
constitutes domestic violence pursuant to NRS 33.018:
(a) For the first offense within the immediately preceding 7 years, is guilty of a misdemeanor and
shall be sentenced to:
(1) Imprisonment in the city or county jail or detention facility for not less than 2 days, but not
more than 6 months; and
(2) Perform not less than 48 hours, but not more than 120 hours, of community service.
The person shall be further punished by a fine of not less than $200, but not more than $1,000. A term of
imprisonment imposed pursuant to this paragraph may be served intermittently at the discretion of the
judge or justice of the peace, except that each period of confinement must be not less than 4 consecutive
hours and must occur either at a time when the person is not required to be at his place of employment or
on a weekend.
(b) For the second offense within the immediately preceding 7 years, is guilty of a misdemeanor and
shall be sentenced to:
(1) Imprisonment in the city or county jail or detention facility for not less than 10 days, but not
more than 6 months; and
(2) Perform not less than 100 hours, but not more than 200 hours, of community service.
The person shall be further punished by a fine of not less than $500, but not more than $1,000.
(c) For the third and any subsequent offense within the immediately preceding 7 years, is guilty of a
category C felony and shall be punished as provided in NRS 193.130.
The legislature went on to provide that sections 18 and 19 of Assembly Bill 170 do not apply to offenses
that are committed before January 1, 1998. The quoted language does not create an ambiguity as to whether
convictions for offenses prior to that date may or may not be used for enhancement of offenses committed after
that date. It simply delineates how offenses committed after that date are to be treated for sentencing purposes.
There being no language relating to when convictions must be committed to be considered for enhancement
purposes, there is no ambiguity to resolve. The plain meaning of the provision is that, when an offense
committed after January 1, 1998, is the third such offense committed within a seven-year period, it
is subject to enhancement.
........................................
offense committed within a seven-year period, it is subject to enhancement.
It is therefore unnecessary to resort to alternate rules of statutory construction to resolve this appeal. See
State v. Jepsen, 46 Nev. 193, 196, 209 P. 501, 502 (1922) (declining resort to judicial construction when the
language of a statute is unambiguous).
Leavitt, J., with whom Rose, C. J., and Young, J., join, dissenting:
As early as 1896 this court held that a penal statute requires a strict construction when against a citizen, but
a liberal one in his favor. State v. Wheeler, 23 Nev. 143, 152, 44 P. 430, 431-32 (1896). The proposition was
reaffirmed recently when we stated this court will narrowly construe penal statutes where they are ambiguous.
Buschauer v. State, 106 Nev. 890, 896, 804 P.2d 1046, 1049 (1990) (citing Carter v. State, 98 Nev. 331, 334-35,
647 P.2d 374, 376 (1982)). See also Bradvica v. State, 104 Nev. 475, 478, 760 P.2d 139, 141 (1988); Anderson
v. State, 95 Nev. 625, 629-30, 600 P.2d 241, 243 (1979); Smith v. District Court, 75 Nev. 526, 528, 347 P.2d
526, 527 (1959).
The Nevada Legislature in 1997 passed a statute creating a crime, battery that constitutes domestic
violence, which is penal in nature. It makes a battery that constitutes domestic violence pursuant to NRS 33.018
a separate crime from a simple battery and enhances a domestic violence battery to a felony after two prior
misdemeanor convictions. Prior to the passage of the new law, a battery that constituted domestic violence
pursuant to NRS 33.018, was treated as a simple battery and prosecuted under NRS 200.481, which defines
battery as any willful and unlawful use of force or violence upon the person of another.
Since this is a penal statute creating a crime, an interpretation of the law requires a strict, narrow construction
and one that is liberal in favor of a defendant. Although the majority's interpretation of the statutory language is
not unreasonable, it is one of two reasonable interpretations. Therefore, the statute is ambiguous and it must be
read narrowly in accordance with [English's] equally tenable interpretation. Buschauer, 106 Nev. at 896, 804
P.2d at 1049. [W]here an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning
which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject, and
against the legislature which has failed to explain itself.' Wheeler, 23 Nev. at 153-54, 44 P. at 432 (quoting
Endlich, Stat. Int., sec. 330). Penal statutes should be so clear as to leave no room for doubt as to the intention
of the legislature, and where a reasonable doubt does exist as to whether the person charged with a violation of
its provisions is within the statute, that doubt must be resolved in favor of the individual.
........................................
statute, that doubt must be resolved in favor of the individual.' Sheriff v. Hanks, 91 Nev. 57, 60, 530 P.2d
1191, 1193 (1975) (quoting Ex Parte Davis, 33 Nev. 309, 318, 110 P. 1131, 1135 (1910)). We have repeatedly
held that where there is ambiguity in the language of a penal statute, that doubt must be resolved in favor of the
individual.' Demosthenes v. Williams, 97 Nev. 611, 614, 637 P.2d 1203, 1204 (1981) (quoting Ex Parte
Davis, 33 Nev. at 318, 110 P. at 1135). The purpose of this rule is to impose criminal liability only in cases
where the accused had adequate notice of the act forbidden. Bradvica, 104 Nev. at 478, 760 P.2d 141.
The majority cites Polson v. State, 108 Nev. 1044, 1047 n.4, 843 P.2d 825, 827 n.4 (1992), for the principle
that no rule of construction requires that a penal statute be strained and distorted to exclude conduct clearly
intended to be within its scope and concludes English's interpretation is strained and distorted. The statement
overlooks the clearly intended portion of the principle. The legislature in this case failed to state what it
clearly intended to be within its scope and thus caused the ambiguity involved in this case.
There could have been no notice of the forbidden criminal act of battery that constitutes domestic violence
until such time as it was made a crime by the legislature, beginning January 1, 1998. Additionally, there was no
notice that a simple battery that occurred prior to January 1, 1998, could be used to enhance a battery that
constitutes domestic violence into a felony.
Additionally, an added element must now be proven to convict a person under the battery that constitutes
domestic violence crime, i.e., the victim must be one of the designated persons protected under NRS 33.018.
Further, in section 32 of the Act, the legislature indicated its intent to apply the law prospectively only by
providing that the new law does not apply to offenses that are committed before January 1, 1998. 1997 Nev.
Stat., ch. 476, 32, at 1821 (emphasis added).
Any simple battery which may have occurred prior to January 1, 1998, involving designated victims listed in
NRS 33.018, cannot be considered for enhancement purposes under the crime created by NRS 200.485 because
the crime of battery that constitutes domestic violence did not exist prior to January 1, 1998.
In this case the battery that constitutes domestic violence occurred when appellant threw a platter of spaghetti
at his live-in girlfriend, pushed her to the floor and tried to pinch her nose. Appellant is now charged with a
felony, without any prior notice that the previous misdemeanor convictions for battery would be used to enhance
his crime to a felony.
........................................
The district court's order denying English's motion to strike his prior conviction for the battery that occurred
on September 28, 1995, should be vacated and the matter remanded with instructions that the prior September
1995 conviction cannot be used for enhancement purposes. Only the conviction for battery that constitutes
domestic battery that occurred on February 11, 1998, after the effective date of the new law can be used for
enhancement purposes.
____________
116 Nev. 840, 840 (2000) Peck v. State
FRANK M. PECK, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32031
August 24, 2000 7 P.3d 470
Appeal from a judgment of conviction, pursuant to a jury verdict, of two counts of sexual assault. The district
court sentenced appellant to two consecutive terms of life with the possibility of parole after ten (10) years.
Second Judicial District Court, Washoe County; Steven R. Kosach, Judge.
Defendant was convicted, on retrial in the district court of two counts of sexual assault. Defendant appealed.
The supreme court, Leavitt, J., held that: (1) a defendant is not entitled to an instruction on lesser-related
offenses, overruling Moore v. State, 105 Nev. 378, 776 P.2d 1235 (1989); (2) wife's consent to search was
voluntary; (3) defendant and his wife waived spousal privilege; (4) double jeopardy did not prevent retrial; and
(5) there was no merger between the forced digital penetration and the coercive sexual intercourse.
Affirmed.
Amesbury & Schutt, Las Vegas; Law Offices of Lloyd Douglas Dix, LLP, and Julius A. Dix, Calabasas,
California, for Appellant.
P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Defendant's testimony that the sexual encounter was consensual did not warrant an instruction on battery with intent to commit
sexual assault as a lesser-included offense of sexual assault.
2. Criminal Law.
A defendant in a criminal case is entitled, upon request, to a jury instruction on his theory of the case so long as there is some
evidence, no matter how weak or incredible, to support it.
........................................
116 Nev. 840, 841 (2000) Peck v. State
To determine whether an offense is necessarily included in the offense charged, the test is whether the offense charged cannot be
committed without committing the lesser offense.
4. Criminal Law.
Where there is evidence which would absolve the defendant from guilt of the greater offense or degree but would support a finding
of guilt of the lesser offense or degree, an instruction on the lesser-included offense is mandatory even if not requested.
5. Criminal Law.
It is not error to refuse to instruct the jury on an issue that is contrary to the defendant's testimony.
6. Criminal Law.
A defendant is not entitled to an instruction on lesser-related offenses; overruling Moore v. State, 105 Nev. 378, 383, 776 P.2d
1235 (1989).
7. Criminal Law.
Indecent exposure, and open or gross lewdness, were lesser-related offenses to sexual assault, and thus, defendant was not entitled
to an instruction on the offenses.
Testimony from police that defendant's wife invited them into defendant's and wife's apartment and that she voluntarily signed a
consent to search form supported trial court's ruling that the wife voluntarily consented to the search of the apartment. U.S. Const.
amend. 4.
9. Criminal Law.
10. Criminal Law.
A district court's findings of fact are reviewed under a deferential standard.
A waiver and consent, freely and intelligently given, converts a search and seizure which otherwise would be unlawful into a
lawful search and seizure. U.S. Const. amend. 4.
Whether in a particular case an apparent consent to search without a warrant was voluntarily given is a question of fact. U.S.
Const. amend. 4.
13. Witnesses.
The subpoena for defendant's wife to testify for State at defendant's sexual assault trial merely compelled the wife's attendance at
trial and did not prevent the wife from invoking the spousal privilege at trial, and thus, the wife waived the privilege by failing to
invoke it before she testified. NRS 49.295(1)(a).
14. Witnesses.
Defendant waived his privilege to prevent his wife from testifying where defendant failed to specifically state his objection prior to
wife's testimony. NRS 49.295(1)(b).
15. Double Jeopardy.
Defendant's first sexual assault trial did not result in an acquittal, and retrial therefore was not barred by double jeopardy, though
the jury foreman had signed a verdict form finding defendant not guilty of one of the two counts,
........................................
116 Nev. 840, 842 (2000) Peck v. State
the two counts, where the trial judge did not accept the verdict, did not poll the jury to determine if the verdict was unanimous, and did
not record the verdict in the court's minutes, but instead declared a mistrial after questioning the jury foreman and ascertaining that the
jury was unable to reach a verdict. U.S. Const. amend. 5.
The prohibition against double jeopardy protects against three distinct abuses: (1) a second prosecution for the same offense after
acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. U.S.
Const. amend. 5.
When a mistrial has been declared by a district court, a defendant may be retried without implicating double jeopardy. U.S. Const.
amend. 5.
18. Criminal Law.
There was no merger between the forced digital penetration of the victim and the coercive sexual intercourse, where the defendant
testified that he first fondled the victim digitally, partially removed some of her clothing, and then stopped before engaging in sexual
intercourse.
19. Criminal Law.
Separate and distinct acts of sexual assault committed as a part of a single criminal encounter may be charged as separate counts,
and convictions entered thereon.
OPINION
Appellant Frank M. Peck was convicted of two counts of sexual assault. His defense at trial was that
the sexual encounter with the victim was consensual. On appeal he asserts that the district court erred by:
(1) failing to instruct the jury on the lesser-included offense of battery with intent to commit sexual
assault and the lesser-related crimes of indecent exposure and open or gross lewdness; (2) denying his
motion to suppress evidence obtained after a search of his apartment; and (3) allowing his wife to testify
against him. He further claims that his conviction is barred by double jeopardy and the principle of
merger of offenses. We have considered appellant's claims and conclude that they lack merit. Therefore,
we affirm appellant's conviction.
FACTS
The events leading to the convictions below occurred following a University of Nevada football game in
Reno, Nevada. The victim, who had been drinking, was accosted by appellant Frank M. Peck (hereinafter
Peck) as she was urinating under some trees bordering a parking lot near Mackay Stadium. Peck grabbed
her around the neck, covered her mouth, and told her that he had a knife and would kill
her if she screamed.
........................................
116 Nev. 840, 843 (2000) Peck v. State
around the neck, covered her mouth, and told her that he had a knife and would kill her if she screamed. He
dragged her backwards causing her to fall down. According to the victim, Peck digitally assaulted her and then
forcibly engaged her in sexual intercourse. She also claimed that, after discontinuing the assault, he masturbated.
Peck testified at trial that he approached the victim while she was urinating and admitted digitally penetrating
her prior to consensual sexual intercourse. He denied that the victim fell to the ground and claimed they had
consensual sexual intercourse while standing up.
While on her back, the victim felt a set of keys on the ground. She took the keys and ran to a friend's house
nearby. The police were notified and began an investigation of the incident. The victim and the officers returned
to the parking lot where the officers located the automobile. The car was registered to Peck and his wife.
The victim was taken to the hospital for an examination. She had no serious physical injuries, but the nurse
noticed that she had leaves and grass in her hair and on her clothing.
Upon arrival at the Peck residence, officers were greeted by Mrs. Peck. She partially opened the door and
asked the officers to wait while she retrieved a bathrobe. The evidence is conflicting with regard to the events
that followed. The officers testified that Peck's wife invited them to enter the apartment. Mrs. Peck testified that
the officers barged in while she was getting her bathrobe. She admitted signing a consent to search form, but
claimed the officers told her that if she refused to sign the form, they would get a warrant, return, and tear up the
apartment.
The officers testified they asked her if her husband was hiding in the bathroom and she responded, Yeah.
The officers entered the bathroom and found Peck attempting to crawl into a closet. They also found evidence in
the bathroom that Peck had shaved his beard after he returned home that night. This evidence was the subject of
a motion to suppress, which was denied by the district court.
The jury was unable to reach a verdict at Peck's first trial, and the district court declared a mistrial. Prior to
the declaration of mistrial, the jury foreman had completed and signed the jury verdict forms, both forms for
guilty and not guilty on both counts and a form which stated that Peck's statements to the police were voluntary.
The verdicts were not accepted by the trial judge, the jury was not questioned to determine if the verdicts were
unanimous, and they were not recorded in the minutes of the court.
Peck was retried and the jury returned a verdict of guilty on both counts.
........................................
116 Nev. 840, 844 (2000) Peck v. State
DISCUSSION
Instructions to the jury
[Headnote 1]
Peck contends that the district court erred by refusing to instruct the jury on proffered lesser-related or
lesser-included offenses. The requested instructions included indecent exposure, open or gross lewdness, and
battery with intent to commit sexual assault.
[Headnote 2]
We have previously held that [a] defendant in a criminal case is entitled, upon request, to a jury
instruction on his theory of the case so long as there is some evidence, no matter how weak or incredible, to
support it.' Harris v. State, 106 Nev. 667, 670, 799 P.2d 1104, 1105-06 (1990) (quoting Roberts v. State, 102
Nev. 170, 172-73, 717 P.2d 1115, 1116 (1986) (quoting Williams v. State, 99 Nev. 530, 531, 665 P.2d 260, 261
(1983))).
[Headnotes 3-5]
This court has held to determine whether an offense is necessarily included in the offense charged, the test
is whether the offense charged cannot be committed without committing the lesser offense. Lisby v. State, 82
Nev. 183, 187, 414 P.2d 592, 594 (1966) (citing State v. Carter, 79 Nev. 146, 379 P.2d 945 (1963); State v.
Holm, 55 Nev. 468, 37 P.2d 821 (1935)). Where there is evidence which would absolve the defendant from
guilt of the greater offense or degree but would support a finding of guilt of the lesser offense or degree, an
instruction on the lesser-included offense is mandatory even if not requested. Id. at 187, 414 P.2d at 595.
However, it is not error to refuse to instruct the jury on an issue that is contrary to the defendant's testimony.
Ruland v. State, 102 Nev. 529, 531, 728 P.2d 818, 819 (1986).
Here, a jury instruction on the lesser-included offense of battery with intent to commit sexual assault was
inconsistent with Peck's testimony that the sexual encounter was consensual. Thus, the district court did not err
in refusing to give the instruction.
In Moore v. State, 105 Nev. 378, 383, 776 P.2d 1235, 1238 (1989), we concluded, fairness to the defendant
requires instructions on related but not necessarily included offenses. We held that a jury should receive
instruction on a lesser-related offense when three conditions are satisfied: (1) the lesser offense is closely related
to the offense charged; (2) defendant's theory of defense is consistent with a conviction for the related offense;
and (3) evidence of the lesser offense exists. Id. The principle was taken from People v. Geiger, 674 P.2d 1303,
1304 (Cal. 1984).
Prior to the decision in Moore we held . . . if the offense for which the defendant is found guilty is not
necessarily included within the offense charged, the conviction is void and must be set aside."
........................................
116 Nev. 840, 845 (2000) Peck v. State
within the offense charged, the conviction is void and must be set aside. McKinnon v. State, 96 Nev. 821-22,
618 P.2d 1222 (1980). See also State v. Carter, 79 Nev. 146, 379 P.2d 945 (1963) where this court held a jury
verdict was a nullity and void for purporting to convict a defendant for an offense that was not charged in an
information nor necessarily included as a lesser offense.
The California Supreme Court recently overruled Geiger in People v. Birks, 960 P.2d 1073 (Cal. 1998). The
court stated, since Geiger was decided, all arguable federal support for its conclusions has been withdrawn . . .
and the rationale of that decision has been unequivocally repudiated by the United States Supreme Court. Id. at
1082 (citing Hopkins v. Reeves, 524 U.S. 88 (1998), reh'g denied, 524 U.S. 968 (1998); Schmuck v. United
States, 489 U.S. 705 (1989)). The Birks court noted that [t]he Geiger rule contravenes the principle of mutual
fairness by giving the defendant substantially greater rights either to require, or to prevent, the consideration of
lesser nonincluded offenses than are accorded to the [State], the party specifically responsible for determining
the charges. Id. at 1084. Additionally, by allowing convictions only on lesser-included offenses and not on
lesser-related offenses both the prosecution and defense will know in advance what elements must be proven at
trial, what jury instructions will be available and may prepare accordingly.
[Headnote 6]
Given the recent evolution of the lesser related doctrine and our previous holdings on this issue, a
re-examination of our decision in Moore is appropriate. We therefore now conclude that allowing instructions on
offenses that are not included offenses, but are merely related offenses, makes the fairness of a verdict
questionable. To allow a conviction on a crime that the State has not even attempted to prove is not a reliable
result, therefore, we expressly overrule Moore as it pertains to the necessity of giving a jury instruction on a
lesser-related offense.
[Headnote 7]
In view of our decision, we determine that the district court did not err in refusing to give a jury instruction
on the lesser-related offenses of indecent exposure, or open or gross lewdness.
Evidence obtained from appellant's apartment
[Headnote 8]
Peck claims that the entry and search of his apartment was illegal and that the evidence obtained should
have been suppressed. There was conflicting evidence presented during the suppression hearing. The police
testified that Peck's wife invited them into the apartment and she voluntarily signed a consent to
search form.
........................................
116 Nev. 840, 846 (2000) Peck v. State
apartment and she voluntarily signed a consent to search form. Peck's wife stated that the officers came in when
she went to get her bathrobe and she signed the consent form only after the officers threatened that if she did not
sign they would obtain a search warrant, return and tear up the apartment. The district court denied the motion to
suppress.
[Headnotes 9, 10]
[F]indings of fact in a suppression hearing will not be disturbed on appeal if supported by substantial
evidence. Stevenson v. State, 114 Nev. 674, 679, 961 P.2d 137, 140 (1998); see also Rice v. State, 113 Nev.
425, 427, 936 P.2d 319, 320 (1997). Further, a district court's findings of fact are reviewed under a deferential
standard. See Hayes v. State, 106 Nev. 543, 550 n.1, 797 P.2d 962, 966 n.1 (1990).
[Headnotes 11, 12]
[A] waiver and consent, freely and intelligently given, converts a search and seizure which otherwise would
be unlawful into a lawful search and seizure. State v. Plas, 80 Nev. 251, 254, 391 P.2d 867, 868 (1964).
Whether in a particular case an apparent consent to search without a warrant was voluntarily given is a question
of fact. Id. at 253, 391 P.2d at 868. This court is not a fact-finding tribunal; that function is best performed by
the district court. Zugel v. Miller, 99 Nev. 100, 101, 659 P.2d 296, 297 (1983).
In this case, the district court resolved the discrepancies in the testimony in favor of the police officers and
ruled that the consent to enter the apartment and search was voluntarily given by Peck's wife. There was
sufficient evidence to support the ruling and the district court did not err when it refused to suppress the
evidence obtained during the search of the apartment.
Spousal immunity
[Headnotes 13, 14]
Peck's wife was subpoenaed and testified for the State as an adverse witness. Peck claims this was a
violation of the spousal privilege set forth in NRS 49.295.
1

__________

1
NRS 49.295 provides in pertinent part as follows:
1. Except as otherwise provided in subsections 2 and 3 and NRS 49.305:
(a) A husband cannot be examined as a witness for or against his wife without his consent, nor a wife
for or against her husband without her consent.
(b) Neither a husband nor a wife can be examined, during the marriage or afterwards, without the
consent of the other, as to any communication made by one to the other during marriage.
........................................
116 Nev. 840, 847 (2000) Peck v. State
A spouse has a statutory privilege to refuse to take the stand when called to testify against his or her
spouse. NRS 49.295(1)(a). This privilege belongs to the testifying spouse and in this case could only be
waived by [the spouse] if and when she took the stand. . . . [T]he testifying spouse privilege is only
waived by taking the stand at trial and testifying
. . . .
[The defendant] also enjoyed the privilege to prevent [his spouse] from testifying regarding any
statements made in reliance on marital confidence.
Franco v. State, 109 Nev. 1229, 1243-44, 866 P.2d 247, 256 (1993) (footnote omitted).
Peck's wife waived her privilege when she testified in the case and failed to invoke the right not to testify.
Peck likewise waived his privilege to prevent his wife from testifying by not specifically stating his objection
prior to her testimony. Peck argues that his wife did not voluntarily consent to testify because she was
subpoenaed by the State. We disagree. A subpoena merely compels the attendance of a witness at trial. The
privilege could have been invoked prior to her testifying. The failure to do so waives the privilege.
Double jeopardymerger of offenses
[Headnote 15]
Peck's double jeopardy claim is based on his first trial, which ended in a mistrial. Prior to the district court
declaring a mistrial, the jury foreman had signed verdict forms finding Peck both guilty and not guilty of Count
I, Sexual Assault, the digital penetration of the victim's vagina. Peck claims that Count I could not be litigated
again in a second trial based upon the principles of double jeopardy and merger of offenses.
[Headnote 16]
The prohibition against double jeopardy protects against three distinct abuses: (1) a second prosecution
for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3)
multiple punishments for the same offense. State v. Lomas, 114 Nev. 313, 315, 955 P.2d 678, 679 (1998); see
also Gordon v. District Court, 112 Nev. 216, 220, 913 P.2d 240, 243 (1996).
[Headnote 17]
Peck was not acquitted at his first trial. Although the jury foreman signed the verdict form finding Peck not
guilty of Count I, the verdict was not accepted by the district judge. The jury was not polled to determine if the
verdict was unanimous, and the verdict was not recorded in the minutes of the court.
........................................
116 Nev. 840, 848 (2000) Peck v. State
dict was not recorded in the minutes of the court. Instead, the district judge declared a mistrial after questioning
the jury foreman and ascertaining that the jury was unable to reach a verdict. When a mistrial has been declared
by a district court, a defendant may be retried without implicating the Double Jeopardy Clause of the United
States Constitution. Beck v. District Court, 113 Nev. 624, 939 P.2d 1059 (1997).
[Headnote 18]
Peck contends that the two counts of sexual assault should be merged, citing Townsend v. State, 103 Nev.
113, 734 P.2d 705 (1987), in support of his claim. In Townsend, we held that only one sexual assault occurred
when Townsend's actions were continuous and did not stop between the different acts. Townsend began
lubricating the victim's vaginal area, stopped to put more lubricant on his finger and then penetrated the child's
vagina with his finger. We held that these acts could not be charged as more than one sexual assault because
[s]uch a hypertechnical division of what was essentially a single act is not sustainable. Id. at 121, 734 P.2d at
710.
Peck also cites Oswald v. State, 715 P.2d 276 (Alaska Ct. App. 1986), as authority that an act of digital
penetration merges with the act of genital penetration into one offense. However, the Oswald case was overruled
a year later in Rodriquez v. State, 741 P.2d 1200 (Alaska Ct. App. 1987), wherein the court held that separate
convictions are permissible where each conviction is for a different type of sexual penetration. The Alaska court
reinforced the holding in Yearty v. State, 805 P.2d 987 (Alaska Ct. App. 1991), where it upheld separate
convictions for multiple acts of penetration which involved different types of sexual penetration. The court held
that the convictions did not merge. Id. at 993.
[Headnote 19]
Peck testified at trial that he first fondled the victim digitally, partially removed some of her clothing, and
then stopped before engaging in sexual intercourse. The great weight of authority supports the proposition that
separate and distinct acts of sexual assault committed as a part of a single criminal encounter may be charged as
separate counts and convictions entered thereon. Deeds v. State, 97 Nev. 216, 217, 626 P.2d 271, 272 (1981);
see also Hamill v. State, 602 P.2d 1212 (Wyo. 1979); People v. Perez, 153 Cal. Rptr. 40 (1979); People v.
Saars, 584 P.2d 622 (Colo. 1978); People v. Robinson, 264 N.W.2d 58 (Mich. Ct. App. 1978); State v. Hill, 450
P.2d 696 (Ariz. 1969). We have previously upheld four counts of sexual assault that occurred during one attack
upon a victim. Hutchins v. State, 110 Nev. 103, 867 P.2d 1136 (1994).
........................................
116 Nev. 840, 849 (2000) Peck v. State
In this case, there was no merger between the forced digital penetration and the coercive sexual intercourse
because both acts were separate and distinct acts of sexual assault. These separate acts cannot be considered a
hypertechnical division of what was . . . a single act. Townsend, 103 Nev. at 121, 734 P.2d at 710.
CONCLUSION
After carefully reviewing Peck's various claims of error and by reason of the foregoing, his convictions of
two separate and distinct sexual assaults are affirmed.
Young, Shearing, Agosti and Becker, JJ., concur.
Rose, C. J., with whom Maupin, J., agrees, concurring:
I write separately to address the circumstances surrounding the alleged not guilty jury verdict on Count I,
Sexual Assault, in Peck's first trial and to discuss the majority's modification of Moore.
Peck argues that the district court should have dismissed Count I based on the Double Jeopardy Clause of the
United States Constitution because the jury in Peck's first trial found him not guilty of this offense.
1
The
incomplete record
2
of the first trial that is before us seems to support the State's claim that the jury could not
reach a verdict on either count. However, if Peck could prove that the jury had reached a verdict on Count I, but
it was not presented to the district court because of his trial attorney's ineffectiveness, I believe a claim of
ineffective assistance of counsel would be established. Therefore, I do not think that he should be precluded
from exploring this issue in post-appeal proceedings.
With respect to Moore, I disagree with the majority that it is necessary to modify this decision concerning a
defendant's right to have the jury instructed on lesser-related offenses. Although the majority concludes that
allowing the defendant to request lesser-related offense instructions brings into doubt the reliability of a verdict,
I believe such instructions actually increase reliability.
The fundamental purpose of a criminal trial is the discovery of the truth. See People v. Perry, 594 N.W.2d
477, 485 (Mich. 1999) (Brickley, J., dissenting). At trial, the jury must determine whether the defendant
committed the crime charged or some related offense based on the evidence presented.
__________

1
I agree with the majority that the Double Jeopardy Clause of the United States Constitution is not implicated,
on the facts of this case, where a mistrial has been declared. See Beck v. District Court, 113 Nev. 624, 939 P.2d
1059 (1997).

2
The majority states that the district judge declared a mistrial after questioning the jury foreman and
ascertaining that the jury was unable to reach a verdict. However, a thorough review of the record on appeal
reveals no support for this proposition, as the minutes and transcripts of the first proceeding are absent.
........................................
116 Nev. 840, 850 (2000) Peck v. State
whether the defendant committed the crime charged or some related offense based on the evidence presented.
See id. The absence of a lesser-related offense, however, increases the risk that the jury will convict the
defendant of the charged offense, merely because the jury's only other choice would be to set the accused
criminal free. See id (citing People v. Hendricks, 521 N.W.2d 461 (1994)) (quoting Spaziano v. Florida, 468
U.S. 447, 455 (1984)). Allowing an instruction on a lesser-related offense gives the factfinder more choices, and
consequently gives jurors the ability to convict a defendant for the crime that is best substantiated by the
evidence. Accordingly, I believe such instructions promote our justice system's effective search for the truth.
Based on this reasoning, I see no need to modify Moore, and disagree that taking away choices from the jury
promotes mutual fairness. The rule in Moore allows the factfinder to agree with an interpretation of the
evidence presented that may not be embodied in the charges brought by the State. Thus, the jury is able to obtain
a verdict grounded on truth and distortion in the factfinding process is minimized. See id.
Further, Moore does not give the defendant an unequivocal right to present lesser-related offense
instructions. Instead, the defendant must first satisfy three conditions: (1) the lesser offense is closely related to
the offense charged; (2) defendant's theory of defense is consistent with a conviction for the related offense; and
(3) evidence of the lesser offense exists. Moore, 105 Nev. at 383; 776 P.2d at 1238. Of these requisites, the
second provides adequate protection against potential abuse by the defense.
3
For instance, if the district court
finds that the defendant is proposing instructions merely for the purpose of distracting the jury or some other
untoward purpose, the court should, in its discretion, find that the instruction is inconsistent with the defense
theory and reject the request. Because I believe that the conditions required in Moore sufficiently address any
mutuality of fairness concern and because the rule, in general, effectively promotes the truthfinding process, I
would refrain from modifying the holding in Moore.
In the present matter, Peck's defense was that the sexual encounter was consensual. Therefore, Peck contends
that he was guilty of, at most, open or gross lewdness and indecent exposure. Because these offenses were
clearly consistent with Peck's theory, and otherwise meet the Moore criteria, I would hold that the district court
erred in failing to give the lesser-related instructions. See also Young v. State, 109 Nev. 205, 215, 849 P.2d 336,
343 (1993) (A conviction [of open or gross lewdness or indecent exposure] does not require proof of
intent to offend an observer or even that the exposure was observed.").
__________

3
Indeed, if Moore needs to be changed, perhaps clarification of this condition is more appropriate than an
outright abolition of the rule.
........................................
116 Nev. 840, 851 (2000) Peck v. State
exposure] does not require proof of intent to offend an observer or even that the exposure was observed.).
However, because of the overwhelming evidence of guilt presented at trial, I cannot see how the failure to
instruct on these misdemeanors would have in any way affected the felony verdicts in this case. Therefore, I
believe that the error here is harmless and does not affect the reliability of the verdicts.
Accordingly, I concur with the majority.
____________
116 Nev. 851, 851 (2000) Medical Device Alliance, Inc. v. Ahr
MEDICAL DEVICE ALLIANCE, INC., Appellant, v. ROBERT AHR, an Individual; ANTOINETTE AHR, an
Individual; RICHARD ALBIN, an Individual; DONNA ALBIN, an Individual; NICHOLAS
ALEXANDER, Trustee; GLENN ALPERT, Trustee; GREGORY ANDERSON, an Individual; ANTIN
& HAAS; LESTER AROH, an Individual; KENNETH ASCH, an Individual; JULIAN BEALE, an
Individual; RICHARD BERTI, an Individual; MARGUERITE BERTI, Trustee; FREDERICK
BINKLEY, Trustee; MICHAEL BOGGS, an Individual; DONALD BORDEN, an Individual;
JEFFREY BRENNER, an Individual; BELLE BRONFELD, an Individual; LARRY BRUNGARDT, an
Individual; WILLIAM COLEMAN BRYAN, an Individual; CABRILLO CARD. MED. GP. (R.
ROTHCHILD); JOSEPH CAMARDESE, an Individual; CHELSEA ASSOCIATES (RANDALL
HARRIS); WARREN CLARK, an Individual; ROBERT CLARK, an Individual; HAROLD COHEN,
an Individual; WILLIAM CONLEY, an Individual; TED COOPER, an Individual; SEAN
COUGHLIN, an Individual; KANAAN KENNY DANDACHI, an Individual; THOMAS
DEAKMAN, an Individual; STEVEN DRESNER, an Individual; LAWRENCE DUMAIN, an
Individual; DEANNA DUMAIN, an Individual; JAMES JIM FAYETTE, an Individual; MARK
FERGUSON, an Individual; STEPHEN FROST, an Individual; SUZANNE FROST, an Individual;
EDWARD I. GALFSKY, an Individual; JOHN GASSER, an Individual; ROBERT GAULT, an
Individual; THELMA GAULT, an Individual; DARRELL GLAHN, an Individual; BLYTHE GLAHN,
an Individual ; MICHAEL GROSSMAN, an Individual; BRIAN HALINA, an Individual; KATHLEEN
HELLMERS, Trustee; KENNETH HERSH, an Individual; HILLIARD LTD.
........................................
PARTNERSHIP; DANIEL HILLIARD, an Individual; WJ HILLIARD FAMILY TRUST; SY
HIMELSTEIN, an Individual; INNER SOURCES, INC.; MIKE ISMAIL, an Individual; HERB
JOHNSON, an Individual; BRENDA JOHNSON, an Individual; GABRIEL KAPLAN, an Individual;
L. ROLLS (NOMINEES) LTD. (L. ROLLS); WILLIAM LARRABEE, an Individual; BONNIE
LARRABEE, an Individual; PETER LAWRENCE, an Individual; MARK LEGGIO, an Individual;
LEVANTHAL PAGET LLC, an Individual; JAMES LYNCH, an Individual; EDWARD
MARANDOLA, JR., an Individual; FILIZI PHILIP MATHIS, an Individual; FRANK MATHIS, an
Individual; ROBERT McCURDY, an Individual; EDWARD LOW MILLS, an Individual ; JAMES
MILLS, an Individual; MICHAEL MOELLER, an Individual; ALBERT MOLINARO, an Individual;
STEVE NATALE, an Individual; KAY NIX, an Individual; LINDA WALLACE PATE, an Individual;
ROBERT PEKELNICKY, an Individual; EMILY PEKELNICKY, an Individual; JON PETERS, an
Individual; ALICE POSHKUS, an Individual; REGINA POSHKUS, an Individual; NICHOLAS
POSHKUS, an Individual; DAVID B. RADDEN, an Individual; RICHARD ROSSI, an Individual;
JAMES SCHLOEMAN, an Individual; DAVID A. SCHULT, an Individual; JEFF SEAVEY, an
Individual; MORRIS SILVER, an Individual; HOLLIS R. SMITH, an Individual; LEMBITU SORRA,
M.D., an Individual; ARTHUR STEINBERG, an Individual; IRA ACCOUNT; CARL F.
STEINFIELD, an Individual; KEN STOKES, an Individual; THOMAS SULZBACH, an Individual;
EUNA SULZBACH, an Individual; ROBERT E. WALKER, an Individual; DAVID WILSON, an
Individual; CHIEFTAIN LLC; WILLIAM J. DOWNEY, JR., an Individual; MARY ANN FLYNN, an
Individual; R. KARL LICHTY, an Individual; LAURENS L. LICHTY, an Individual; LEONARD
MAKOWKA, an Individual; AND KURT G. TOPPEL, an Individual, Respondents.
No. 34586
DONALD K. McGHAN, Appellant, v. GEORGE C. SWARTS as Receiver for MEDICAL DEVICE
ALLIANCE, INC.; ROBERT AHR, an Individual; ANTOINETTE AHR, an Individual; RICHARD
ALBIN, an Individual; DONNA ALBIN, an Individual;
........................................
ALBIN, an Individual; NICHOLAS ALEXANDER, Trustee; GLENN ALPERT, Trustee; GREGORY
ANDERSON, an Individual; ANTIN & HAAS; LESTER AROH, an Individual; JULIAN BEALE, an
Individual; RICHARD BERTI, an Individual; MARGUERITE BERTI, Trustee; FREDERICK
BINKLEY, Trustee; MICHAEL BOGGS, an Individual; DONALD BORDEN, an Individual;
JEFFREY BRENNER, an Individual; BELLE BRONFELD, an Individual; LARRY BRUNGARDT, an
Individual; WILLIAM COLEMAN BRYAN, an Individual; CABRILLO CARD. MED. GP. (R.
ROTHCHILD); JOSEPH CAMARDESE, an Individual; CHELSEA ASSOCIATES (RANDALL
HARRIS); WARREN CLARK, an Individual; ROBERT CLARK, an Individual; HAROLD COHEN,
an Individual; WILLIAM CONLEY, an Individual; TED COOPER, an Individual; SEAN
COUGHLIN, an Individual; KANAAN KENNY DANDACHI, an Individual; STEVEN DRESNER,
an Individual; LAWRENCE DUMAIN, an Individual; DEANNA DUMAIN, an Individual; JAMES
JIM FAYETTE, an Individual; MARK FERGUSON, an Individual; STEPHEN FROST, an
Individual; SUZANNE FROST, an Individual; EDWARD I. GALFSKY, an Individual; JOHN
GASSER, an Individual; ROBERT GAULT, an Individual; THELMA GAULT, an Individual;
DARRELL GLAHN, an Individual; BLYTHE GLAHN, an Individual; MICHAEL GROSSMAN, an
Individual; BRIAN HALINA, an Individual; KATHLEEN HELLMERS, Trustee; KENNETH HERSH,
an Individual; HILLIARD LTD. PARTNERSHIP; DANIEL HILLIARD, an Individual; WJ
HILLIARD FAMILY TRUST; SY HIMELSTEIN, an Individual; INNER SOURCES, INC.; MIKE
ISMAIL, an Individual; HERB JOHNSON, an Individual; BRENDA JOHNSON, an Individual;
GABRIEL KAPLAN, an Individual; L. ROLLS (NOMINEES) LTD. (L. ROLLS); WILLIAM
LARRABEE, an Individual; BONNIE LARRABEE, an Individual; PETER LAWRENCE, an
Individual; MARK LEGGIO, an Individual; JEFFREY LEVANTHAL, an Individual; JAMES
LYNCH, an Individual; EDWARD MARANDOLA, JR., an Individual; FILIZI PHILIP MATHIS, an
Individual; FRANK MATHIS, an Individual; ROBERT MCCURDY, an Individual; EDWARD LOW
MILLS, an Individual; JAMES MILLS, an Individual;
........................................
an Individual; MICHAEL MOELLER, an Individual; ALBERT MOLINARO, an Individual; STEVE
NATALE, an Individual; KAY NIX, an Individual; LINDA WALLACE PATE, an Individual;
ROBERT PEKELNICKY, an Individual; EMILY PEKELNICKY, an Individual; JON PETERS, an
Individual; ALICE POSHKUS, an Individual; REGINA POSHKUS, an Individual; NICHOLAS
POSHKUS, an Individual; DAVID B. RADDEN, an Individual; RICHARD ROSSI, an Individual;
JAMES SCHLOEMAN, an Individual; DAVID A. SCHULT, an Individual; JEFF SEAVEY, an
Individual; MORRIS SILVER, an Individual; HOLLIS R. SMITH, an Individual; LEMBITU SORRA,
M.D., an Individual; ARTHUR STEINBERG, an Individual; CARL F. STEINFIELD, an Individual;
KEN STOKES, an Individual; THOMAS SULZBACH, an Individual; EUNA SULZBACH, an
Individual; ROBERT E. WALKER, an Individual; DAVID WILSON, an Individual; CHIEFTAIN
LLC; WILLIAM J. DOWNEY, JR., an Individual; R. KARL LICHTY, an Individual; LAURENS L.
LICHTY, an Individual; LEONARD MAKOWKA, an Individual; and KURT G. TOPPEL, an
Individual, Respondents.
No. 35013
August 25, 2000 8 P.3d 135
Consolidated appeals from an order of the district court appointing a temporary receiver for appellant
Medical Device Alliance, Inc., and from an order of the district court denying appellant Donald K. McGhan's
subsequent motion to terminate the receivership. Eighth Judicial District Court, Clark County; Nancy M. Saitta,
Judge.
Shareholders sought appointment of receiver for corporation on basis of waste, corporate mismanagement
and fraud. The district court appointed temporary receiver and subsequently denied motion of intervenor, a
director and large shareholder, to terminate receivership. Corporation and intervenor appealed, and appeals were
consolidated. The supreme court held that: (1) shareholders satisfied ten percent requirement for appointment of
receiver, (2) second amended complaint related back to filing of original amended complaint, and (3) appointing
temporary receiver and refusing to terminate receivership was not abuse of discretion.
Affirmed.
........................................
William E. Cooper Law Offices, Las Vegas, for Appellant Medical Device Alliance, Inc.
Schreck Morris and Amelia R. De Los Santos, Kristina Pickering and Elayna J. Youchah, Las Vegas, for
Appellant Medical Device Alliance, Inc., and for Appellant McGhan.
Jones Vargas and Philip M. Ballif and Kirk B. Lenhard, Las Vegas, for Appellant McGhan.
James, Driggs, Walch, Santoro, Kearney, Johnson & Thompson and Aviva Y. Gordon, John E. Ham, Mark
A. James and L. Kirk Williams, Las Vegas, for Respondents.
Jolley Urga Wirth & Woodbury, Las Vegas, for Respondents.
Bernhard & Leslie, Las Vegas, for Respondents.
Harrison Kemp & Jones, Chtd., and Jennifer C. Popick, Las Vegas, for Respondents.
Frank A. Ellis & Associates, Las Vegas, for Respondents.
1. Corporations.
Whether shareholders met ten percent requirement for seeking appointment of receiver was to be determined at moment court
considered their motion for appointment of temporary receiver. NRS 78.650.
2. Corporations.
Shareholders satisfied requirement that they hold ten percent of stock in corporation, so as to be entitled to seek appointment of
corporate receiver, at time of hearing on their motion, based on amended complaint that added additional shareholder plaintiffs. NRS
78.650.
3. Limitation of Actions.
Filing of the shareholders' second amended complaint in action to appoint receiver for corporation related back to the filing of
shareholders' first amended complaint, so as to satisfy ten percent requirement and give court jurisdiction at time it appointed receiver,
where shareholders sought leave to file second amended complaint in order to comply with the original order allowing leave to amend,
which was not complied with solely to clerical error in refiling original complaint rather than first amended complaint. NRS 78.650.
4. Parties.
Allowing plaintiff shareholders to amend their complaint seeking appointment of corporate receiver to add additional plaintiffs, in
order to satisfy requirement that plaintiff shareholders hold at least ten percent of outstanding shares, was not abuse of discretion. NRS
78.650.
5. Appeal and Error; Corporations.
Appointing temporary receiver for corporation upon shareholders' allegations of corporate fraud and mismanagement was not
abuse of discretion. NRS 78.650(1).
........................................
6. Appeal and Error; Corporations.
Refusal to terminate temporary receivership, which had been ordered on basis of alleged fraud and mismanagement, on motion of
large shareholder and director, was not abuse of discretion. NRS 78.650(4).
OPINION
Per Curiam:
Respondents (Nevada shareholders) filed suit in district court seeking the appointment of a receiver for
appellant Medical Device Alliance, Inc. (MDA). After finding strong evidence of serious corporate
mismanagement and fraud, the district court appointed a temporary receiver for MDA. Subsequently,
appellant Donald K. McGhan (McGhan) successfully intervened and filed a motion to terminate the
receivership, which the district court denied. MDA and McGhan both appealed, and their appeals have been
consolidated.
For the reasons discussed herein, we conclude that the Nevada shareholders met the statutory
requirement under NRS 78.650 prescribing that at least ten percent of MDA's shareholders apply for the
appointment of a temporary receiver. We also conclude that the district court did not abuse its discretion by
appointing a temporary receiver for MDA or by denying McGhan's subsequent motion to terminate the
receivership.
FACTS
In September 1995, McGhan founded MDA, which incorporated in Nevada. MDA sought to develop,
manufacture, and market medical devices that were used to remove body fat. As part of this effort, MDA
entered into an exclusive, worldwide licensing agreement with Misonix, Inc. to market and sell Misonix's
patented ultrasound liposuction device, which liquefies body fat and then suctions it out of the body.
In 1997, over 270 private investors, which included the Nevada shareholders, invested approximately
$14,313,750.00 in MDA through private placements. MDA sought to use these funds to finance further
research, development and testing of [MDA's] products, to fund costs associated with commercial
development, production and marketing of [MDA's] products, to acquire other related technologies and
targeted companies and as working capital. McGhan, members of his family, and companies owned and
controlled by McGhan now hold approximately twenty-four percent of the shares in MDA.
........................................
After allegations of fraud and mismanagement arose and after unsuccessfully pursuing the appointment of a
receiver for MDA in California,
1
the Nevada shareholders filed suit in district court on March 19, 1999,
seeking the appointment of a receiver under NRS 78.650.
2
The suit named only MDA as a defendant and did
not name McGhan or the other directors of MDA as defendants.
The Nevada shareholders subsequently filed a motion seeking the appointment of a temporary receiver for
MDA. Specifically, the Nevada shareholders' suit and motion alleged that McGhan and the other directors of
MDA were guilty of fraud, gross mismanagement, and self-dealing in conducting MDA's corporate affairs. The
suit and motion also alleged that McGhan and the directors were guilty of misfeasance, malfeasance, or
nonfeasance and that MDA's assets were being wasted. In order to protect MDA's current and future assets, the
Nevada shareholders sought the appointment of a temporary receiver.
The Nevada suit was initiated at the request of a California attorney, Kathryn Tschopik (Tschopik), who
had earlier pursued the appointment of a receiver for MDA in California. Tschopik associated with the Nevada
firm of James, Driggs, Walch, Santoro, Kearney, Johnson & Thompson (James Driggs) to represent the
Nevada shareholders, some of whom had previously attempted to intervene in the California suit. Acting as the
agent for the Nevada shareholders, Tschopik authorized James Driggs to file the Nevada suit. Tschopik later
successfully associated into the Nevada suit as co-counsel for the Nevada shareholders under Nevada Supreme
Court Rule 42.
Five days before the scheduled hearing on their motion to appoint a temporary receiver, the Nevada
shareholders filed a motion for leave to file an amended complaint, along with an ex parte motion to shorten the
time to hear the motion. The Nevada shareholders sought to amend their complaint to add seven additional
MDA shareholders as plaintiffs, to rename three current shareholders in order to reflect their proper capacity as
trustees instead of individuals, and to substitute a partnership in place of a current individual shareholder since
the partnership held the shares.
__________

1
Although the California court did impose an injunction on MDA to prevent the diversion of its corporate
assets, the California court denied a request to appoint a receiver for MDA. It appears from the record on appeal
that the California court's decision was based, at least in part, on MDA's argument that Nevada had exclusive
jurisdiction over the appointment of a receiver.

2
Initially, the Nevada shareholders sought an accounting of MDA's transactions and financial activities.
However, the Nevada shareholders voluntarily dismissed the accounting claim at a hearing in the district court
on June 28, 1999.
........................................
The Nevada shareholders filed their motion in response to MDA's argument that the Nevada shareholders
lacked the requisite number of shareholders necessary to seek a receiver. The Nevada shareholders argued that if
the district court permitted them to file the amended complaint, they would have the requisite number of
shareholders needed to seek the appointment of a receiver under NRS 78.650 based on the number of
outstanding shares claimed by MDA. Because the motion to amend the complaint would resolve the
jurisdictional issue of whether the Nevada shareholders had the necessary number of shareholders as required by
NRS 78.650, the district court granted the Nevada shareholders' ex parte motion to shorten time to hear the
motion and set arguments for June 28, 1999, which was the same date for arguments on the motion to appoint
the temporary receiver.
On June 28, 1999, the district court heard arguments concerning the Nevada shareholders' motion to amend
their complaint and their motion to appoint a temporary receiver. After reviewing the evidence and hearing the
parties' arguments, the district court made a finding on the date of the hearing and subsequently issued an order
dated June 30, 1999, wherein it granted the Nevada shareholders' motion to amend their complaint. The district
court concluded that [t]he court, after granting leave to amend the complaint, finds that it has jurisdiction to
appoint a receiver over [MDA]. The district court then went on to grant the Nevada shareholders' motion to
appoint a temporary receiver.
Specifically, the district court found that it should appoint a receiver in accordance with NRS
[78.650(1)(b)], since it finds that the trustees or directors of [MDA] have been guilty of fraud or collusion or
gross management [sic] in the conduct or control of its affairs. The district court also found that the trustees or
directors have been guilty of misfeasance, malfeasance or nonfeasance under NRS 78.650(1)(c). Further, the
district court found that it should appoint a receiver in accordance with NRS [78.650(1)(e)], since it finds that
the assets of [MDA] are in danger of waste, sacrifice or loss through attachment, foreclosure, litigation or
otherwise.
On August 23, 1999, McGhan filed a motion to intervene and a motion to terminate the receivership. In
support of his motion, McGhan submitted a proposed plan of action to the district court. McGhan argued that if
the district court accepted the proposed plan, the plan would obviate the need for a continuation of the
receivership.
Meanwhile, on August 27, 1999, the receiver filed his first report with the district court. The receiver's report
confirmed most, if not all, of the Nevada shareholders' allegations of waste, fraud, and gross
mismanagement committed by McGhan and the other directors.
........................................
fraud, and gross mismanagement committed by McGhan and the other directors.
After reviewing the evidence and hearing the parties' arguments on September 7, 1999, the district court
granted McGhan's motion to intervene, but denied his motion to terminate the receivership because the district
court found that there was insufficient cause to terminate the receivership at that time. MDA and McGhan now
appeal the district court's order appointing the temporary receiver and the order denying the motion to terminate
the receivership.
DISCUSSION
The primary issue presented by these appeals is whether the Nevada shareholders met the statutory
requirement under NRS 78.650 prescribing that at least ten percent of MDA's shareholders apply for the
appointment of a receiver. MDA and McGhan argue that the district court lacked jurisdiction to appoint a
temporary receiver because the Nevada shareholders failed to satisfy the ten percent requirement under NRS
78.650. We disagree and conclude that the Nevada shareholders complied with NRS 78.650 once the district
court granted their motion to amend the complaint.
Nevada law mandates that [a]ny holder or holders of one-tenth of the issued and outstanding stock may
apply to the district court for an order appointing a receiver. NRS 78.650(1). The district court does not have
jurisdiction to appoint a corporate receiver, unless the applicant holder or holders of one-tenth of the issued
and outstanding stock has legal title at the time the court considers the application. Searchlight Dev., Inc. v.
Martello, 84 Nev. 102, 109, 437 P.2d 86, 90 (1968). Accordingly, the moment when the court is determining
whether or not a temporary receiver should be appointed . . . is the controlling time' for determining whether
the shareholders hold the requisite ten percent stock under NRS 78.650(1). Id. (quoting Hill v. Vaill, 176 A.2d
881, 883 (Conn. Super. Ct. 1961)).
[Headnotes 1, 2]
In the present case, the controlling time for determining whether the Nevada shareholders satisfied the ten
percent requirement under NRS 78.650 was at the June 28, 1999, hearing where the district court considered
appointing the temporary receiver for MDA. At the hearing, MDA essentially argued that once the district court
subtracted the shares held by the improperly named shareholders, the four uninterested shareholders who did not
desire the appointment of a receiver, and the one shareholder who sold his stock from the number of shares
claimed by the Nevada shareholders,
........................................
shareholders, the Nevada shareholders did not then hold the requisite ten percent of MDA's shares.
3
However,
MDA's contention is undermined by the affidavit of Charles E. Barrantes (Barrantes), the executive vice
president, chief financial officer, and secretary of MDA.
In his June 2, 1999, affidavit, Barrantes stated that MDA had 10,879,239 outstanding shares. Importantly,
Barrantes conceded in his affidavit that if the improperly named shareholders in the original complaint were
included in their proper capacities, the Nevada shareholders would have 1,020,750 shares, or 9.38 percent of
MDA's outstanding stock. Consequently, even accepting MDA's argument that the 5,000 shares of MDA stock
that were sold and the 15,000 shares of MDA stock held by the four uninterested shareholders should have been
subtracted from the 1,020,750 shares held by the Nevada shareholders, the Nevada shareholders were still left
with 1,000,750 shares.
When the district court granted the Nevada shareholders' motion to amend their complaint, seven additional
MDA shareholders collectively holding an additional 110,000 shares of MDA stock were added as plaintiffs.
Therefore, at the time of the June 28, 1999, hearing, the Nevada shareholders held 1,110,750 shares of MDA
stock, which reflected 10.21 percent of MDA's outstanding stock. Accordingly, we conclude that the Nevada
shareholders satisfied the statutory requirements of NRS 78.650 and that the district court had jurisdiction to
appoint a temporary receiver.
4

Our conclusion that the district court had jurisdiction to appoint a temporary receiver is somewhat
complicated by the facts surrounding the filing of the Nevada shareholders' amended complaint. Following the
district court's granting of the Nevada shareholders' motion to amend their complaint,
__________

3
MDA and McGhan also contend that during depositions taken in the prior California case, eight MDA
shareholders who are named in the Nevada suit indicated that they had no knowledge of the Nevada suit and did
not seek the appointment of a receiver. However, after a careful review of the depositions, it is clear that the
shareholders authorized a suit against MDA, but did not draw a distinction between the proceedings in
California and Nevada. Even assuming that the eight deponents did not authorize the Nevada suit, MDA and
McGhan did not present this evidence to the district court until November 30, 1999. Thus, the district court did
not have this evidence before it at the June 28, 1999, hearing, which was the controlling time for determining
whether the Nevada shareholders satisfied NRS 78.650. Accordingly, we conclude that the depositions of the
eight shareholders do not apply to the issue of whether the district court had jurisdiction on June 28, 1999, to
appoint a temporary receiver under NRS 78.650.

4
We note that if the Nevada shareholders eventually seek the appointment of a permanent receiver and this
case proceeds to trial, the district court must again determine at that time whether the Nevada shareholders hold
the requisite ten percent of MDA's stock. See NRS 78.650; Searchlight Dev., Inc., 84 Nev. at 108-09, 437 P.2d
at 90.
........................................
holders' motion to amend their complaint, the Nevada shareholders filed their amended complaint on July 6,
1999. Unfortunately, due to a clerical error by James Driggs, the Nevada shareholders actually re-filed the
original complaint instead of the amended complaint.
Eventually, the error was discovered, and on October 1, 1999, the Nevada shareholders filed a second
motion for leave to file a second amended complaint. In the second motion, the Nevada shareholders sought to
correct the earlier problems and also sought to add even more MDA shareholders, as well as name the remaining
directors of MDA as defendants. On December 10, 1999, the district court granted the Nevada shareholders'
second motion to amend their complaint and permitted the Nevada shareholders to correct the earlier problems
and name the remaining directors of MDA, but did not permit the additional MDA shareholders, first mentioned
in the second motion to amend, to join in the suit. On January 4, 2000, the Nevada shareholders filed their
second amended complaint.
As a result, the additional plaintiffs who held the 110,000 shares of MDA stock that gave the Nevada
shareholders the requisite ten percent of stock under NRS 78.650 did not definitively become plaintiffs until the
second amended complaint was filed on January 4, 2000. Although the Nevada shareholders erred by filing the
incorrect version of their amended complaint, this error in no way undermines the fact that the Nevada
shareholders represented more than ten percent of MDA's shareholders at the time of the June 28, 1999, hearing.
[Headnote 3]
Accordingly, we conclude that the district court had jurisdiction to appoint the temporary receiver based on
its June 30, 1999, order granting the Nevada shareholders' first motion to amend their complaint. We also
conclude that under the circumstances, the filing of the Nevada shareholders' second amended complaint on
January 4, 2000, relates back to the filing of the Nevada shareholders' first amended complaint on July 6, 1999,
because the Nevada shareholders sought leave to file the second amended complaint in order to comply with the
June 30, 1999, order of the district court.
5

__________

5
Our conclusion that the Nevada shareholders' second amended complaint relates back to the filing of the
Nevada shareholders' first amended complaint should not be confused with NRCP 15(c) and the relating back of
amendments to the original pleading. NRCP 15(c) involves whether claims or defenses asserted in an amended
pleading relate back to the date of the original pleading. See NRCP 15(c). Because this case does not involve
claims and defenses, we conclude that NRCP 15(c) is inapplicable to this case. See Nurenberger
Hercules-Werke v. Virostek, 107 Nev. 873, 882, 822 P.2d 1100, 1106 (1991) (concluding that NRCP 15(c) does
not apply when adding or
........................................
[Headnote 4]
Moreover, although MDA and McGhan do not specifically argue that the district court abused its discretion
by granting the Nevada shareholders' motions to amend their complaint, we conclude that the district court acted
within its discretion by granting the Nevada shareholders' motions to amend their complaint.
6
See Connell v.
Carl's Air Conditioning, 97 Nev. 436, 439, 634 P.2d 673, 675 (1981) (holding that a motion to amend a
complaint is addressed to the sound discretion of the trial court, and its decision will not be disturbed absent a
showing of abuse of discretion).
MDA and McGhan next argue that the district court abused its discretion by appointing a temporary receiver
for MDA. Specifically, MDA and McGhan contend that the district court abused its discretion because: (1) an
injunction imposed on MDA by the California court provided the district court an alternative remedy sufficient
to preserve the status quo; (2) the California court's decision not to appoint a receiver should have been given
effect by the district court under the principle of comity; (3) the district court's order in effect imposed a
permanent receiver on MDA with overly broad powers; (4) MDA's directors were denied due process by not
being named as parties and by not being provided notice; and (5) MDA's directors are preferred as a receiver
under NRS 78.650.
[Headnote 5]
The appointment of a receiver is an action within the trial court's sound discretion and will not be disturbed
absent a clear abuse. Nishon's Inc. v. Kendigian, 91 Nev. 504, 505, 538 P.2d 580, 581 (1975); see also Peri-Gil
Corp. v. Sutton, 84 Nev. 406, 411, 442 P.2d 35, 37 (1968); Bowler v. Leonard, 70 Nev. 370, 383, 269 P.2d 833,
839 (1954). Under NRS 78.650(1), the district court may appoint a temporary receiver in a number of instances,
including, but not limited to, situations where corporate directors are guilty of fraud or gross mismanagement or
where the assets of the corporation are in danger of waste. Having carefully reviewed and considered the parties'
contentions and the entire record on appeal,
__________
substituting parties because NRCP 15(c), by its terms, applies only to claims or defenses).

6
The parties dispute the applicability of Transcontinental Oil Company v. Free, 80 Nev. 207, 391 P.2d 317
(1964), to this case. We conclude that Transcontinental Oil is inapplicable because it does not touch on the
precise issue before this court. In Transcontinental Oil, the issue was whether the district court had jurisdiction
to set a hearing date on the plaintiff's motion to appoint a receiver. See id. at 207-10, 391 P.2d at 317-19. Here,
the issue is whether the district court had jurisdiction to grant the Nevada shareholders' first motion to amend
their complaint in order to ensure jurisdiction over this case.
........................................
entire record on appeal, we conclude that the district court acted well within its discretion in appointing a
temporary receiver for MDA.
7

[Headnote 6]
Lastly, McGhan asserts that the district court abused its discretion by denying his motion to terminate the
receivership. NRS 78.650(4) provides that the district court may at any time for sufficient cause make a decree
terminating the receivership. Consequently, the decision to terminate a receivership rests in the sound discretion
of the district court under the plain language of NRS 78.650(4). We again conclude that the district court acted
within its discretion in denying McGhan's motion to terminate the receivership.
CONCLUSION
Accordingly, we conclude that the district court properly granted the Nevada shareholders' first motion to
amend their complaint, properly determined that the Nevada shareholders satisfied the statutory requirements
of NRS 78.650, and had jurisdiction to appoint the temporary receiver for MDA. We also conclude that the
district court did not abuse its discretion by appointing a temporary receiver or by denying McGhan's motion to
terminate the receivership. Having reviewed MDA and McGhan's remaining contentions on appeal and finding
them to be without merit, we affirm the order of the district court appointing a temporary receiver and the order
denying the subsequent motion to terminate the receivership.
__________

7
Without citing any legal authority, MDA and McGhan also contend that the district court appointed a
temporary receiver and denied McGhan's subsequent motion to terminate the receivership without holding an
evidentiary hearing and permitting witnesses to testify. We decline to consider this argument because MDA and
McGhan fail to cite any legal authority in support of their position. See SIIS v. Buckley, 100 Nev. 376, 382,
682 P.2d 1387, 1390 (1984) (declining to consider conclusory arguments, lacking substantive citation to
relevant authority, and failing to address the pivotal issues in the case). Moreover, we emphasize that the
district court has only appointed a temporary receiver for MDA. If this case proceeds to trial, the district court
should admit evidence and testimony in order to determine whether a permanent receiver should be appointed to
run MDA's corporate affairs.
____________
116 Nev. 864, 864 (2000) Las Vegas Hous. Auth. v. Root
LAS VEGAS HOUSING AUTHORITY and EMPLOYERS INSURANCE COMPANY OF NEVADA, fka
STATE INDUSTRIAL INSURANCE SYSTEM, Appellants, v. GERALD ROOT and CITY OF
HENDERSON, Respondents.
No. 32571
August 30, 2000 8 P.3d 143
Appeal from a district court order denying judicial review and affirming an appeals officer's determination in
a workers' compensation case involving successive employers and successive industrial injuries. Eighth Judicial
District Court, Clark County; Stephen L. Huffaker, Judge.
Claimant who had sustained injury to his left shoulder over ten years earlier while working for different
employer, for which benefits claim was closed, sought recovery of benefits after he sustained additional shoulder
injuries while working for City. After City's claims administrator denied benefits, an administrative hearing
officer reversed, and City appealed. After separate denial of claimant's request to reopen prior claim was
affirmed, and appeals were consolidated, an appeals officer directed reopening of prior claim, and affirmed
denial of later claim. The district court denied judicial review. Appeal was taken. The supreme court held that
under last injurious exposure rule, City, which employed claimant at times when injury to his right shoulder
caused him to overuse and aggravate prior injury to his left shoulder, and when he subsequently incurred more
serious injury, was responsible for providing workers' compensation benefits, as later injuries were not merely a
recurrence of earlier injury.
Kimberly A. Wanker, Ltd., Henderson, for Appellant Las Vegas Housing Authority.
Lenard Ormsby, General Counsel, and Javier A. Arguello, Associate General Counsel, Carson City, for
Appellant Employers Insurance Company of Nevada.
King Gross & Sutcliffe, Ltd., Las Vegas, for Respondent Gerald Root.
Gugino & Schwartz, Las Vegas, for Respondent City of Henderson.
Fact that industrial accident resulted in aggravation of worker's preexisting shoulder condition did not provide basis for
denial of workers' compensation benefits, where preexisting condition arose out of his past employment.
........................................
compensation benefits, where preexisting condition arose out of his past employment. NRS 616C.175.
For a workers' compensation claim to be reopened, statute requires proof of a change of circumstances, and proof that the primary
cause of the change of circumstances is the injury for which the claim was originally made. NRS 616C.390.
Workers' compensation claimant who sustains a nonindustrial injury that aggravates or exacerbates a previous industrial injury is
entitled to reopening of prior workers' compensation claim as long as the industrial injury is the primary cause of the claimant's
worsened condition, and the employer at the time of the industrial injury remains liable. NRS 616C.390.
In occupational disease, successive-employer cases, last injurious exposure rule places full liability for workers' compensation
benefits upon the carrier covering the risk at the time of the most recent injury that bears a causal relation to the disability.
Last injurious exposure rule applies to cases involving successive employers and successive industrial injuries, and provides for
full liability for workers' compensation benefits to be placed upon the carrier covering the risk at the time of the most recent injury that
bears a causal relation to the disability.
Successive accidental injuries may be divided into three categoriesnew injuries, aggravations of a prior injury, and
recurrenceswith liability for workers' compensation benefits generally depending on how injury is characterized: employer/insurer at
the time of a new injury or aggravation of a prior injury is liable for all benefits, even if subsequent injury would have been much less
severe in the absence of the prior condition, and even if the prior condition contributed to the final condition, but if subsequent injury
is merely a recurrence of the first, and does not contribute even slightly to the causation of the disabling condition, the
employer/insurer covering the risk at the time of the original injury remains liable for the subsequent injury.
Last injurious exposure rule frees claimant seeking workers' compensation benefits from the burden of allocating responsibility for
his disability, and forestalls any determination regarding which employment was the primary cause of a work-related disease or injury.
Under last injurious exposure rule, claimant's employer at times when injury to his right shoulder caused him to overuse and
aggravate old injury to his left shoulder, which had been incurred while working for different employer, and when he subsequently
incurred more serious injury to his left shoulder while using wrench, was responsible for providing workers' compensation benefits,
where later injuries to left shoulder were not merely a recurrence of earlier injury, and overuse and incident involving wrench
contributed at least slightly to causation of disabling condition.
........................................
OPINION
Per Curiam:
At issue in this case is which of two successive employers is liable for workers' compensation benefits
when an employee sustains a later industrial injury that aggravates an earlier industrial injury. An
administrative appeals officer held the first employer liable by requiring reopening of the employee's original
claim under NRS 616C.390. We conclude the appeals officer should have held the subsequent employer
liable under the last injurious exposure rule, which places full liability upon the employer covering the risk at
the time of the most recent industrial injury that bears a causal relation to the employee's disability, rather
than resolving the matter under the claim reopening statute. Because the appeals officer misapplied the law,
the district court should have granted judicial review and reversed the administrative decision.
FACTS AND PROCEDURAL HISTORY
Respondent Gerald Root injured his left shoulder in 1981 while working for appellant Las Vegas Housing
Authority (LVHA). Appellant Employers Insurance Company of Nevada's predecessor, the State Industrial
Insurance System (SIIS), accepted Root's workers' compensation claim. Root was treated for shoulder strain,
but he received no disability benefits, and the claim was closed in 1982. Root worked full duty for LVHA for
another five or six years, then worked for Stratton Electric, Inc., for two years. In 1989 Root began working
as a maintenance man for the City of Henderson, a self-insured employer.
In April 1994 Root injured his right shoulder at work. The City's claims administrator, CDS of Nevada,
ultimately accepted Root's workers' compensation claim, and Root underwent right shoulder surgery a year
later, in April 1995. While awaiting surgery and during recovery, Root favored his right shoulder and
overused his left shoulder, which began hurting. In October 1995 Root sought treatment for pain in his left
shoulder, and in November 1995 he requested that his 1981 claim be reopened.
[Headnote 1]
In January 1996, while trying to move a water line with a wrench held in his left hand, Root felt a sudden
pain and a tearing sensation in his left shoulder. He finished his shift, reported the injury to his supervisor
that evening, and filed a written injury report the following day. Root's physician later concluded that Root
had probably sustained a rotator cuff tear. Root submitted a workers' compensation claim with the
City.
........................................
workers' compensation claim with the City. CDS denied the claim under NRS 616.50185 (now NRS 616C.175)
based on Root's preexisting problems with his left shoulder.
1
An administrative hearing officer reversed the
claim denial, and the City appealed. Meanwhile, SIIS denied Root's reopening request. An administrative
hearing officer affirmed, and Root appealed. The appeals were consolidated.
In February 1996, while the administrative appeals were pending, Root underwent surgery to repair the torn
rotator cuff in his left shoulder. The surgeon discovered the supraspinatus tendon was torn across its entire
width, the coracoacromial ligament and biceps tendons were frayed and the synovial membranes were inflamed;
however, the surgeon could not tell from the appearance of these conditions when or how they developed. A
number of doctors rendered opinions regarding causation; some related Root's torn rotator cuff back to the 1981
injury and natural deterioration, aggravated by the 1994 and 1996 injuries, and some concluded that the torn
rotator cuff resulted solely from the 1996 injury.
The appeals officer concluded the 1996 incident was an aggravation of the 1981 injury. Noting that Root's
left shoulder had already become symptomatic in late 1995, before the January 1996 incident with the wrench,
the appeals officer decided the January 1996 incident was not the primary cause of Root's disability although it
made his shoulder pain worse. Based on the finding that the primary cause of Root's disability was his
preexisting shoulder condition, the appeals officer directed SIIS to reopen the 1981 claim and affirmed CDS's
denial of Root's 1996 claim.
The district court denied judicial review, and LVHA and SIIS appealed to this court. They contend the
appeals officer should have applied the last injurious exposure rule, which places full liability upon the carrier
covering the employee at the time of the most recent injury bearing a causal relationship to the disability, instead
of determining which injury was the primary cause of Root's shoulder disability and whether reopening was
warranted.
2
We agree.
__________

1
Denial on this basis was wrong. When CDS denied the claim, NRS 616C.175, formerly NRS 616.50185,
provided that an employee was not entitled to compensation if a subsequent industrial injury aggravated,
precipitated or accelerated a preexisting condition from a cause or origin that did not arise out of or in the course
of his current or past employment. Root's preexisting condition arose out of his past employment.

2
SIIS and LVHA also contend the appeals officer's determination that the 1981 injury was the primary cause
of Root's 1996 disability is not supported by substantial evidence. This contention is without merit. The
determination is supported by substantial medical evidence, and while there was conflicting
........................................
DISCUSSION
Reopening claims under NRS 616C.390
[Headnotes 2, 3]
For a workers' compensation claim to be reopened, NRS 616C.390 requires proof of a change of
circumstances and proof that the primary cause of the change of circumstances is the injury for which the claim
was originally made. Specifically, NRS 616C.390 provides, in pertinent part:
1. If an application to reopen a claim to increase or rearrange compensation is made in writing
more than 1 year after the date on which the claim was closed, the insurer shall reopen the claim if:
(a) A change of circumstances warrants an increase or rearrangement of compensation during the
life of the claimant; [and]
(b) The primary cause of the change of circumstances is the injury for which the claim was originally
made; . . . .
Thus, a claimant who sustains a nonindustrial injury that aggravates or exacerbates a previous industrial injury
is entitled to reopening as long as the industrial injury is the primary cause of the claimant's worsened
condition, and the employer at the time of the industrial injury remains liable. See Warpinski v. SIIS, 103 Nev.
567, 747 P.2d 227 (1987).
Had this case not involved successive industrial injuries, the appeals officer's determination of primary cause
would have been appropriate. A different analysis is required, however, in cases involving successive employers
and successive industrial injuries. In these kinds of cases, the last injurious exposure rule applies. See id. at 569,
747 P.2d at 229.
The last injurious exposure rule
[Headnotes 4, 5]
This court adopted the last injurious exposure rule for occupational disease, successive employer cases in
State Industrial Insurance System v. Jesch, 101 Nev. 690, 709 P.2d 172 (1985). Simply stated, the last
injurious exposure rule in occupational disease, successive-employer cases places full liability upon the carrier
covering the risk at the time of the most recent injury that bears a causal relation to the disability.' Id. at 696,
709 P.2d at 176 (quoting 4 A. Larson, The Law of Workmen's Compensation 95.20 {19S4)).
__________
evidence, it was the appeals officer's job to weigh the evidence. See NRS 233B.135(3). The problem here is that
the appeals officer should not have been trying to decide the primary cause of Root's 1996 shoulder disability.
........................................
95.20 (1984)). The last injurious exposure rule applies to successive injury cases in the same way. SIIS v.
Swinney, 103 Nev. 17, 19, 731 P.2d 359, 360 (1987). Thus, full liability is placed upon the carrier covering the
risk at the time of the most recent injury that bears a causal relation to the disability. Id.
[Headnotes 6, 7]
Successive accidental injuries may be divided into three categories new injuries, aggravations of a prior
injury, and recurrences with the question of who is liable generally depending on how the injury is
characterized. Id. at 19, 731 P.2d at 361. The employer/insurer at the time of a new injury or aggravation of a
prior injury is liable for all of the claimant's benefits, even if the subsequent injury would have been much less
severe in the absence of the prior condition, and even if the prior condition contributed to the final condition. Id.
at 19-20, 731 P.2d at 361. However, if the subsequent injury is merely a recurrence of the first, and does not
contribute even slightly to the causation of the disabling condition, the employer/insurer covering the risk at the
time of the original injury remains liable for the subsequent injury. Id.; see also Collett Electric v. Dubovik, 112
Nev. 193, 198, 911 P.2d 1192, 1196 (1996). The last injurious exposure rule thus frees the employee from the
burden of allocating responsibility for his disability and forestalls any determination regarding which
employment was the primary cause of a work-related disease or injury. See Collett Electric, 112 Nev. at 197,
911 P.2d at 1195; Warpinski, 103 Nev. at 569, 747 P.2d at 229.
Although the rule may sometimes produce harsh results for an employer, this court has concluded that it
serves the best interests of employees, avoids the difficulties of attempting to apportion responsibility between
successive employers and spreads the risks between employers overall. Collett Electric at 197, 911 P.2d at 1195.
[Headnote 8]
Here, there was evidence that Root's 1994 injury to his right shoulder caused him to overuse his left shoulder,
which aggravated his old injury, and that Root's 1996 injury to his left shoulder further aggravated the old injury,
or constituted a new injury. The appeals officer concluded the 1996 incident was an aggravation of the 1981
industrial injury, and substantial evidence supports that determination. There was no evidence, however, that
Root's 1996 left shoulder condition was merely a recurrence of his 1981 injury, and that the 1994 overuse and
1996 incident with the wrench did not contribute even slightly to the causation of the disabling condition. The
City of Henderson was Root's employer during these later injuries,
........................................
during these later injuries, and the last injurious exposure rule places responsibility for payment of Root's
benefits on the City and CDS.
CONCLUSION
The appeals officer misconstrued the law and failed to properly apply the last injurious exposure rule. The
City was Root's employer at the time of the most recent injuries that bore a causal relation to Root's disability.
Consequently, we reverse the district court's order and remand to the district court for entry of an order
granting judicial review, reversing the appeals officer's decision and directing the City of Henderson to accept
Root's 1996 claim for workers' compensation. See NRS 233B.135(3)(d) (authorizing judicial reversal of an
administrative decision affected by a prejudicial error of law).
____________
116 Nev. 870, 870 (2000) Conway v. Circus Circus Casinos, Inc.
BEVERLY CONWAY, JULIE REYNOLDS, MALINDA RUIZ, JERI TOW, SHEILA PHILLIPSHORSLEY,
SHERI JOHNSON, KRISTI FITE, ULA GEYER, RENE ROUX, LAURA MATCHAM, SERGIO
GARCIA, ROBERT GARCIA, PHYLLIS SHIVELY and MICHELE CAIRNS, Appellants, v.
CIRCUS CIRCUS CASINOS, INC., a Nevada Corporation, Respondent.
No. 32705
September 15, 2000 8 P.3d 837
Appeal from a district court order dismissing an action filed by employees against their employer requesting
injunctive relief and damages for personal injuries. Second Judicial District Court, Washoe County; Peter I.
Breen, Judge.
Employees sued employer for injunctive relief and for damages for personal injuries sustained as result of
their exposure to noxious fumes. The district court dismissed complaint for failure to state claim for relief.
Employees appealed. The supreme court held that: (1) Industrial Insurance Act's exclusive remedy provision
barred claims for personal injury damages alleging that employer knew of hazardous condition but failed to
correct it, but (2) exclusive remedy provision did not bar employees' claims for injunctive relief.
William M. O'Mara, Reno, for Appellants.
........................................
Robison Belaustegui Sharp & Low, Reno, for Respondent.
In reviewing dismissal for failure to state claim for relief, appellate court construes the pleading liberally, draws every fair
intendment in favor of the non-moving party, and accepts all factual allegations contained in the complaint as true. NRCP 12(b)(5).
Appellate court will not affirm a district court's dismissal of a complaint for failure to state a claim unless it appears beyond a
doubt that the plaintiff could prove no set of facts which, if accepted by the trier of fact, would entitle him or her to relief. NRCP
12(b)(5).
For an incident to qualify as an accident, for which claimant can recover workers' compensation benefits, the claimant must
show the following three elements: (1) an unexpected or unforeseen event; (2) happening suddenly and violently; and (3) producing at
the time, or within a reasonable time, objective symptoms of injury. NRS 616A.020(1).
Industrial Insurance Act's exclusive remedy provision barred employees' claims against employer for damages for injuries arising
from their exposure to noxious fumes, alleging that employer knew of hazardous condition but failed to correct it. Alleged injuries
qualified as accidents under Act in absence of allegation that employer acted with deliberate and specific intent to injure them. NRS
616A.020(1).
Simply labeling an employer's conduct as intentional will not subject the employer to tort liability outside workers' compensation.
To avoid Industrial Insurance Act's exclusive remedy provision, employee must factually allege that employer acted with deliberate and
specific intent to injure. NRS 616A.020(1).
Industrial Insurance Act's exclusive remedy provision did not bar employees' claims for injunctive relief. NRS 616A.020(1).
OPINION
Per Curiam:
The question in this case is whether the claims contained in the appellants' second amended complaint
were properly dismissed by the district court. To answer this question, we are called upon to decide whether
the exclusive remedy provision of the Nevada Industrial Insurance Act (NIIA) bars appellants' claims.
We conclude that the appellants' claims for damages were properly dismissed as being barred by the
exclusive remedy provision of the NIIA. However, we conclude that the district court erred by dismissing the
appellants' claim for injunctive relief on the ground that it was barred by the exclusive remedy
provision of the NIIA.
........................................
ground that it was barred by the exclusive remedy provision of the NIIA.
Because this case was dismissed at the pleading stage, the underlying facts are derived from the appellants'
second amended complaint. Appellants (Employees) are all employees or former employees of respondent
Circus Circus Casinos, Inc. (Circus Circus), which operates a hotel-casino in downtown Reno, Nevada. The
Employees work in the PBX office, which is the communication switchboard room for the hotel. Prior to 1991,
the PBX office was located in the hotel near the casino. In approximately October of 1991, in conjunction with
the expansion of the casino, the PBX office was moved to a basement.
After several weeks of working in the new location, the Employees began to complain of noxious fumes
accumulating in the PBX office. Many of them became sick to their stomachs, experienced headaches and
became dizzy while working.
In the fall of 1992, one of the Employees was hospitalized.
1
Some of the Employees underwent medical
testing at the behest of Circus Circus. The results of the tests were not made known to the Employees. The
Employees continued to complain to Circus Circus management about the poor air quality, the noxious fumes
and the physical ailments they were experiencing.
In October of 1996, some of the Employees had their blood gases tested immediately following their shifts,
after having worked a full five-day workweek.
2
The results of the tests indicated that the carbon monoxide
levels in the Employees' blood streams were dangerously high. Just prior to returning to work from their days
off, their blood gases were tested again. At that time, the carbon monoxide levels were within normal limits.
The Employees filed a complaint in the district court alleging various claims of tortious conduct by Circus
Circus. The Employees' first amended complaint alleged the following claims for relief: (1) injunctive relief for
failure to provide a safe workplace; (2) intentional infliction of physical harm; (3) failure to advise of a
dangerous condition; and (4) negligent infliction of mental and physical damage.
Pursuant to NRCP 12(b)(5), Circus Circus moved to dismiss the second, third and fourth claims for relief.
The district court dismissed the third and fourth claims with prejudice as barred by the NIIA. The district court
dismissed the second claim without prejudice, finding that intentional infliction of physical harm is not a legally
cognizable cause of action. The court indicated that while a cause of action is recognized for battery or assault, it
had not been properly set out in the second cause of action.
__________

1
The record does not reflect the reason for the hospitalization.

2
It is unclear from the factual allegations in the complaint whether these tests were done at the behest of
Circus Circus, or whether the Employees arranged for the tests themselves.
........................................
not been properly set out in the second cause of action. The district court allowed the Employees ten days to
amend their complaint to state a cognizable claim for relief.
The Employees then filed their second amended complaint. This complaint contained the same claims for
relief as the previous complaint and added three additional claims: (5) battery; (6) intentional infliction of mental
harm; and (7) outrage.
3
Circus Circus moved to dismiss the second through seventh claims for relief. The
district court ultimately found that all of the claims for relief were barred by the exclusive remedy provision of
the NIIA and dismissed the entire complaint with prejudice.
On appeal, the Employees contend that the district court erred in dismissing the first, second, third, fifth,
sixth and seventh claims for relief.
4
They argue that these claims fall outside the scope of the NIIA. Circus
Circus contends that the district court properly dismissed the Employees' entire complaint as barred by the
exclusive remedy provision of the NIIA.
5

[Headnotes 1, 2]
The standard of review for a dismissal under NRCP 12(b)(5) is rigorous as this court must construe the
pleading liberally and draw every fair intendment in favor of the [non-moving party].' Squires v. Sierra Nev.
Educational Found., 107 Nev. 902, 905, 823 P.2d 256, 257 (1991) (quoting Merluzzi v. Larson, 96 Nev. 409,
411, 610 P.2d 739, 741 (1980)). In doing so, we accept all factual allegations contained in the complaint as true.
See Capital Mortgage Holding v. Hahn, 101 Nev. 314, 315, 705 P.2d 126, 126 (1985). We will not affirm a
district court's dismissal of a complaint for failure to state a claim unless it appears beyond a doubt that the
plaintiff could prove no set of facts which, if accepted by the trier of fact, would entitle him [or
her] to relief."
__________

3
We note that the Employees' sixth and seventh claims for relief, intentional infliction of emotional distress
and outrage, are redundant. See Star v. Rabello, 97 Nev. 124, 125, 625 P.2d 90, 91 (1981) (recognizing that the
torts of intentional infliction of emotional distress and outrage are synonymous).

4
The dismissal of the negligent infliction of mental and physical damage claim is not being appealed.

5
Circus Circus also contends that the Employees' second amended complaint violated NRCP 15(a) and the
district court's order because it stated the same claims for relief that were previously dismissed and also added
three additional claims for relief without leave of court. The district court's order dismissing the second amended
complaint based upon an analysis of NIIA coverage indicated that the Employees tried to comply with the
previous order granting leave to amend to state a cognizable claim for relief. Therefore, we determine that the
second amended complaint was not filed without leave of court. Even if the second amended complaint had been
filed without leave of court, a dismissal without prejudice is all that would have been warranted. The district
court ultimately dismissed the entire complaint with prejudice on the ground that all the claims for relief were
barred by the exclusive remedy provision of the NIIA.
........................................
accepted by the trier of fact, would entitle him [or her] to relief. Edgar v. Wagner, 101 Nev. 226, 228, 699 P.2d
110, 112 (1985).
[Headnote 3]
The exclusive remedy provision of the NIIA provides that [t]he rights and remedies provided in chapters
616A to 616D, inclusive, of NRS for an employee on account of an injury by accident sustained arising out of
and in the course of the employment shall be exclusive. NRS 616A.020(1). An injury is defined, in relevant
part, as a sudden and tangible happening of a traumatic nature, producing an immediate or prompt result which
is established by medical evidence. NRS 616A.265(1). NRS 616A.030 defines an accident as an unexpected
or unforeseen event happening suddenly and violently, with or without human fault, and producing at the time
objective symptoms of an injury. Therefore, [i]n order for an incident to qualify as an accident, the claimant
must show the following three elements: (1) an unexpected or unforeseen event; (2) happening suddenly and
violently; and (3) producing at the time, or within a reasonable time, objective symptoms of injury. Bullock v.
Pinnacle Risk Mgmt., 113 Nev. 1385, 1389, 951 P.2d 1036, 1039 (1997).
[Headnote 4]
The second amended complaint alleges that the Employees suffered various ailments resulting from their
exposure to the noxious fumes. Normally, the exposure to noxious fumes would be classified as an unexpected
and unforeseen event. However, the Employees allege that the exposure to these fumes was the result of
intentional conduct by Circus Circus and, therefore, not an accident. We have recognized that employers do not
enjoy immunity, under the exclusive remedy provisions of the workers' compensation statutes, from liability for
their intentional torts. . . . An employer who commits an intentional tort upon an employee cannot claim that the
intentional act resulted in an accidental injury. Advanced Countertop Design v. Dist. Ct., 115 Nev. 268, 270,
984 P.2d 756, 758 (1999).
[Headnote 5]
We conclude, however, that the Employees failed to properly plead their intentional torts in order to avoid
being barred by the exclusive remedy provision of the NIIA. Simply labeling an employer's conduct as
intentional, as the Employees did, will not subject the employer to liability outside workers' compensation.
Sanford v. Presto Mfg. Co., 594 P.2d 1202, 1203 (N.M. Ct. App. 1979). The relevant inquiry is not the degree
of negligence or even depravity on the part of the employer, but the more narrow question of whether the
specific action that injured the employee was an act intended to cause injury to the employee. Id. at 1204.
........................................
We conclude that the Employees may avoid the exclusive remedy provision of the NIIA in regard to their
injuries only if Circus Circus deliberately and specifically intended to injure them. See King v. Penrod Drilling
Co., 652 F. Supp. 1331, 1334 (D. Nev. 1987); Cerka v. Salt Lake County, 988 F. Supp. 1420, 1421-1422 (D.
Utah 1997) (a showing of knowledge coupled with the substantial certainty that injury will result is not enough
to avoid the exclusive recovery provision of worker's compensation system); Angle v. Alexander, 945 S.W.2d
933, 935 (Ark. 1997) (the facts must show the employer had a desire' to bring about the consequences of the
acts or that the acts were premeditated with the specific intent to injure the employee); Austin v.
Johns-Manville Sales Corp., 508 F. Supp. 313, 317 (D. Maine 1981) (Even if the alleged conduct goes beyond
aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist,
. . . [or] willfully failing to furnish a safe place to work, . . . this still falls short of the kind of actual intention to
injure that robs the injury of accidental character.) (quoting 2A Arthur Larson & Lex K. Larson, Workmen's
Compensation Law 68.13 at 13-8, and cases cited in n.11 (1976)); Martinkowski v. Carborundum Co., 437
N.Y.S.2d 237, 238 (Sup. Ct. 1981) (mere knowledge and appreciation of a risk is not the same as the intent to
cause injury). In this case, the Employees failed to factually allege that Circus Circus acted with deliberate and
specific intent to injure them. A bare allegation is not enough. An employee must provide facts in his or her
complaint which show the deliberate intent to bring about the injury. See Hay v. Hay, 100 Nev. 196, 198, 678
P.2d 672, 674 (1984) ([a] complaint must set forth sufficient facts to establish all necessary elements of a claim
for relief); see also 6 Larson, supra, 103.04.
The second amended complaint alleges that Circus Circus knew of a condition that was injurious to the
Employees, but failed to correct it. This is insufficient to remove their claim from the purview of the exclusive
remedy provision of the NIIA. If an employee may exempt his or her claim from the exclusive remedy provision
of the NIIA by merely pleading that the employer knew of a condition and failed to remedy it, then the workers'
compensation system would be rendered meaningless. For these reasons, we conclude that the exposure to the
noxious fumes was an unexpected or unforeseen event.
We further conclude that the exposure to the noxious fumes satisfies the suddenly and violently
requirement. In American International Vacations v. MacBride, 99 Nev. 324, 326, 661 P.2d 1301, 1302 (1983),
an employee's knee gave way' two or three inches, causing a twisting motion and pain and discomfort in his
lower back. The employee continued with his duties, but was admitted to the emergency room the
next morning for back pain.
........................................
admitted to the emergency room the next morning for back pain. He eventually had to undergo surgery on his
back for a rupture of an intervertebral disc caused by the twisting incident at work. This court determined that
the incident satisfied the suddenly and violently requirement of an accident. Id. at 327, 661 P.2d at 1303. In
doing so, this court recognized that [o]ther jurisdictions . . . have construed similar statutory requirements that
compensable accidents occur violently' as properly descriptive of any cause efficient in producing a harmful
result. Id.
The third requirement of an accident is also satisfied in this case. As previously stated, some of the
Employees allegedly became sick to their stomachs, and experienced headaches and dizziness as a result of
being exposed to the noxious fumes. Furthermore, the Employees allege that tests revealed that the carbon
monoxide levels in the Employees' blood streams were dangerously high. Therefore, we conclude that the
exposure to the noxious fumes produced at the time, or within a reasonable time, objective symptoms of
injury.
For these reasons, we conclude that the Employees' alleged injuries are injur[ies] by accident sustained
arising out of and in the course of the employment. NRS 616A.020(1). Therefore, the Employees are limited to
the remedies provided for under the NIIA. See id. Therefore, we affirm the dismissal of the second through
seventh claims for relief.
[Headnote 6]
We now turn to the question of the dismissal of the Employees' claim for injunctive relief contained in their
first cause of action.
6
We conclude that the exclusive remedy provision of the NIIA does not bar injunctive
relief. Therefore, we must reverse that portion of the district court's order dismissing the Employees' claim for
injunctive relief and remand this case to the district court.
In sum, we conclude that the district court properly dismissed the Employees' claims for relief seeking
damages because the Employees failed to plead facts showing that Circus Circus deliberately and specifically
intended to injure them. Therefore, their alleged injuries come within the purview of the NIIA. However, we
conclude that the exclusive remedy provision of the NIIA does not bar the Employees' claim for injunctive relief.
__________

6
The district court's order summarily dismissed the claim for injunctive relief. Neither the Employees' nor
Circus Circus's briefs addressed the district court's dismissal of this claim. However, since the Employees have
not advised us that they no longer wish to pursue the dismissal of the claim for relief seeking injunctive relief,
we address it here.
____________
116 Nev. 877, 877 (2000) State, Tax Comm'n v. Nevada Cement Co.
NEVADA TAX COMMISSION; DEPARTMENT OF TAXATION, THE STATE OF NEVADA, Appellants,
v. NEVADA CEMENT COMPANY, Respondent.
No. 33178
September 15, 2000 8 P.3d 147
Appeal from a district court order granting a petition for judicial review and reversing a decision of the
Nevada Tax Commission that certain parts of machinery and equipment used by respondent are not exempt from
the sales and use tax. First Judicial District Court, Carson City; Michael R. Griffin, Judge.
Taxpayer, a manufacturer of Portland Cement, sought judicial review of Tax Commission's denial of claim
for refund of sales or use taxes paid for steel grinding balls, steel kiln chains, kiln bricks, and castable materials
purchased by taxpayer. The district court reversed. Commission appealed. The supreme court held that: (1) as a
matter of first impression, a primary purpose test applies when determining whether items are exempt from
sales or use taxes; and (2) taxpayer's purchases were not exempt from taxation.
Rehearing granted; opinion withdrawn; reversed and remanded on rehearing. 117 Nev.
----
, 36 P.3d
418 (2001).
Frankie Sue Del Papa, Attorney General, and Elaine S. Guenaga, Deputy Attorney General, Carson
City, for Appellants.
Paul D. Bancroft, Incline Village, for Respondent.
Although the supreme court shall not substitute its judgment for that of the agency on a question of fact, review of
questions of law, including a district court's interpretation of statutes, is de novo. NRS 233B.135(3).
2. Taxation.
Tax exemptions are strictly construed in favor of finding taxability, and any reasonable doubt about whether an
exemption applies must be construed against the taxpayer.
3. Taxation.
Under a primary purpose test, only items purchased for the express purpose of resale, and not items purchased for dual
purposes that included a purpose that was not resale, were exempted from sales or use taxes, where retail sale was defined
by statute as a sale for any purpose other than resale in the regular course of business of tangible personal property. NRS
372.050, 372.075, 372.080.
4. Taxation.
Steel grinding balls, steel kiln chains, kiln bricks, and castable materials were not purchased by manufacturer of Portland
Cement for the sole purpose of resale, but instead served the dual purposes of use for manufacture of Portland Cement and
contribution of ingredients to the raw mix, and thus, under the primary purpose test, the purchases were not exempt from
sales or use taxes. NRS 372.050, 372.075.
........................................
5. Taxation.
Tax Commission's interpretation of sales and use tax statutes facially, and as applied in a specific context, was not rulemaking
that was subject to Administrative Procedures Act's notice and public hearing requirements. NRS 233B.060, 372.050, 372.075.
OPINION
Per Curiam:
Respondent Nevada Cement Company (Nevada Cement) purchases steel grinding balls, steel kiln
chains, kiln bricks and castable materials for use in the manufacturing of cement. Nevada Cement paid
either sales or use tax when it purchased those items and later sought a refund of the taxes paid. Appellant
Nevada Tax Commission (Commission) disagreed and determined that the items were not exempt from the
sales tax. For the reasons discussed herein, we conclude that the Commission properly concluded that the
items were subject to tax. The district court, therefore, erred in reversing the decision of the Commission.
FACTS
Nevada Cement manufactures and sells Portland Cement. Portland Cement is a chemical bonding agent
which, when mixed with water and aggregate, produces ready-mix concrete. Portland Cement is composed of
specific proportions of limestone, clay, gypsum, iron, and silica. Throughout the manufacturing process,
measurements are taken to evaluate and regulate the amounts and proportions of these ingredients in the
product.
The manufacturing process is a vigorous, heat-intensive, abrasive process. It begins by crushing
limestone, clay, and iron into a raw mix. The raw mix is then heated in the kiln to temperatures over 2,000
degrees. The extreme heat is distributed throughout the mix by the kiln chain. A chemical reaction causes
some of the mix to liquefy and the raw mix turns into clinker, which is a rock-like substance. The clinker is
cooled, then mixed with gypsum and crushed into a fine powder, which is the finished product.
During the manufacturing process, various components become disintegrated and are incorporated into
the product. These include the steel grinding balls, which crush the raw mix and the clinker. The steel kiln
chain also gradually disintegrates in the kiln and becomes part of the raw mix. Next, the kiln brick, which is
made of cement-like materials and lines the kiln, gradually disintegrates and becomes incorporated
into the product.
........................................
and becomes incorporated into the product. The portion of the kiln brick that does not completely disintegrate
into the raw mix in the kiln is removed from the kiln, crushed and introduced back into the raw mix. There are
also castables, which are made of cement-like materials and line the passageways through which the product
passes. The castables gradually disintegrate and are incorporated into the product. The portion of the castables
that does not completely disintegrate is removed, crushed, and introduced back into the raw mix.
The steel grinding balls, steel kiln chains, kiln brick and castables are composed of iron alumina and silica
elements, which are necessary ingredients of Portland Cement. These items are purchased both in Nevada and
outside Nevada by Nevada Cement. The items are eventually wholly incorporated into the cement during the
manufacturing process. Annually, out of 740,000 tons of raw mix material, approximately 21,000 tons consist of
iron. Approximately one percent of that figure comes from the wearing down of the steel parts.
Nevada Cement initially paid either sales or use tax when it purchased the steel grinding balls, steel kiln
chain, kiln brick and castable materials. Thereafter, Nevada Cement determined that these items were not subject
to taxation and requested a refund of the taxes paid from the Nevada Department of Taxation (Department).
The taxes at issue in this case are Nevada's sales and use taxes, which are codified under NRS Chapters 372
and 374. The Sales and Use Tax Act in NRS Chapter 372 was adopted during the 1955 legislative session and
became effective on July 1, 1955. The sales and use taxes are imposed on items sold at retail.
On February 29, 1996, the Department issued a Notice of Audit Deficiency in the amount of $38,496.23 to
Nevada Cement. Nevada Cement filed a timely Petition for Redetermination of the Audit Deficiency. Nevada
Cement's petition included an appeal of the Department's denial of its refund claim concerning its purchases of
eleven different items, some of which were substantially incorporated and some of which were wholly
incorporated into the final product. The audit deficiency was revised to $5,878.42, and Nevada Cement paid this
in full. The refund claim then proceeded to an administrative hearing. At the administrative hearing, the
Department's counsel conceded that of the eleven items, the steel grinding balls, steel kiln chain, kiln brick and
castable materials were incorporated into the finished product and should be exempt from the sales and use tax.
On October 18, 1996, the Department hearing officer issued his decision denying Nevada Cement's entire refund
claim.
Nevada Cement appealed to the Commission, and an administrative hearing was held.
........................................
trative hearing was held. On April 23, 1997, the Commission issued its decision affirming the hearing officer's
decision denying Nevada Cement's entire refund claim. Nevada Cement filed a petition for judicial review with
the district court. In the petition, Nevada Cement abandoned its claim regarding the seven items that were not
completely incorporated into the cement and pursued only the portion of the refund claim relating to the
remaining four items (the steel grinding balls, steel kiln chain, kiln brick and castables) that were wholly
incorporated into the cement. On September 8, 1998, the district court reversed the decision of the Commission
and granted Nevada Cement's refund claim.
The district court determined that iron alumina and silica are necessary components of Portland Cement, the
four items at issue were composed of these elements, and the items contribute significant amounts of these
ingredients to the cement. The district court concluded that the standard approved by the Attorney General in
Op. Nev. Att'y Gen. 74 (June 24, 1955) (Opinion 74) established a physical-ingredient test to determine
exclusion from the sales and use tax and rejected a primary purpose test. The district court also held that the
administrative decisions had erroneously adopted a primary purpose test. The district court also held that the
steel grinding balls, steel kiln chain, kiln bricks, and castable materials were excluded from taxation under the
physical-ingredient test and that Nevada Cement was entitled to a refund of the taxes paid on the items, with
interest. The Commission subsequently appealed.
DISCUSSION
[Headnotes 1, 2]
The burden of proof is on the party attacking or resisting an administrative agency's decision. See NRS
233B.135(2). Although this court shall not substitute its judgment for that of the agency on a question of fact,
review of questions of law, including a district court's interpretation of statutes, is de novo. See NRS
233B.135(3); State, Dep't. of Mtr. Vehicles v. Frangul, 110 Nev. 46, 48, 867 P.2d 397, 398 (1994).
Additionally, this court has held that [t]ax exemptions are strictly construed in favor of finding taxability and
that any reasonable doubt about whether an exemption applies must be construed against the taxpayer. Shetakis
Dist. v. State, Dep't Taxation, 108 Nev. 901, 907, 839 P.2d 1315, 1319 (1992).
The question of whether to apply the physical-ingredient test or the primary purpose test is an issue of
first impression before this court. Several other jurisdictions have split between the two tests. These jurisdictions
have dealt with statutes having similar language that permit exemption from sales or use tax
items which enter into or become an ingredient or part of a finished product.
........................................
ilar language that permit exemption from sales or use tax items which enter into or become an ingredient or part
of a finished product. Alabama, Georgia, Missouri, Nebraska, New York, Texas, and Washington all appear to
follow the physical-ingredient rule.
1
Meanwhile, Arkansas, California, Colorado, Illinois, Ohio, and Tennessee
have applied the primary purpose test.
2

Nevada Cement argues that the district court properly applied the physical-ingredient test to determine that
the items at issue in the present case are exempt from taxation based on the Attorney General's Opinion 74,
which interprets NRS 372.080. Under the physical-ingredient test, when an item becomes a physical ingredient
or a component of the finished product, it is a sale for resale, which is excluded from taxation.
The Nevada sales tax is imposed on the retail sale of tangible personal property to consumers. See NRS
372.105; NRS 374.110. A use tax is levied when a Nevada consumer purchases retail goods out of state, thus
preventing avoidance of the sales tax. See NRS 374.190; NRS 372.185. This use tax is imposed on a purchaser
based on the purchaser's storage, use or consumption of the goods in Nevada. See NRS 372.185.
The definitional statutes exclude from sales tax a purchase for resale in the regular course of business and
exclude from the use tax a purchase for sale in the regular course of business. See NRS 372.050; NRS
372.075. Storage and use do not include the keeping, retaining or exercising of any right or power over
tangible personal property for the purpose of being processed, fabricated or manufactured into, attached to, or
incorporated into, other tangible personal property to be transported outside the state and thereafter used solely
outside the state. NRS 372.080. Nevada Cement argues that this is a clear statement of the physical-ingredient
test.
On May 23, 1955, the Nevada Tax Commission adopted Ruling No. 9. This ruling provides guidance on the
resale exclusion as it applies to property used in manufacturing. The rule states that the sales and use tax
"applies to the sale of tangible personal property to persons who purchase it for the
purpose of use in manufacturing, producing or processing tangible personal property and
not for the purpose of physically incorporating it into the manufactured article to be sold."
__________

1
See State v. Southern Kraft Corporation, 8 So. 2d 886 (Ala. 1942); Blackmon v. Atlantic Steel Company,
203 S.E.2d 710 (Ga. Ct. App. 1973); Nucor Steel, Etc. v. Herrington, 322 N.W.2d 647 (Neb. 1982); Matter of
Finch, Pruyn & Co., Inc. v. Tully, 419 N.Y.S.2d 232 (N.Y. App. Div. 1979); Bullock v. Lone Star Industries,
Inc., 584 S.W.2d 386 (Tex. Ct. App. 1979); Lone Star Industries v. State, Dept. of Rev., 647 P.2d 1013 (Wash.
1982).

2
See Hervey v. International Paper Co., 483 S.W.2d 199 (Ark. 1972); Kaiser Steel Corp. v. State Bd. of
Equal., 593 P.2d 864 (Cal. 1979); Gold Star Sausage Co. v. Kempf, 679 P.2d 1116 (Colo. Ct. App. 1984);
Brennan Cattle Company v. Jones, 242 N.E.2d 192 (Ill. 1968); Merchants Cold Storage Co. v. Glander, 83
N.E.2d 197 (Ohio 1948); Quaker Oats Co. v. Jackson, 745 S.W.2d 269 (Tenn. 1988); Kingsport Pub. Corp. v.
Olsen, 667 S.W.2d 745 (Tenn. 1984).
........................................
sales and use tax applies to the sale of tangible personal property to persons who purchase it for the purpose of
use in manufacturing, producing or processing tangible personal property and not for the purpose of physically
incorporating it into the manufactured article to be sold. Nevada Cement argues that this ruling does not require
that an item be purchased solely for the purpose of incorporation into the finished product. Rather, Nevada
Cement argues that dual-purpose items may be excluded from taxation as long as one purpose is the physical
incorporation of the item into the finished product.
Nevada Cement also cites Nevada Tax Commission Ruling No. 47, adopted on May 23, 1955. This ruling
addresses the resale exclusion as it applies to property purchased for use in the manufacture of printed matter.
The rule reads, in part, that the printers are the consumers of all materials which do not become an ingredient
part of the printed job. Nevada Cement argues that this is a clear expression of the physical-ingredient test; a
printer must pay sales or use tax on purchases of items that do not become physically incorporated into the final
product.
In further support of the application of the physical-ingredient test, Nevada Cement points to Opinion 74.
Opinion 74 examined the definition of storage and use to determine whether use of scrap iron in the Nevada
portion of a multi-state mining process was excluded from Nevada's use tax. The scrap iron was used to
precipitate copper out of a copper sulphate solution. In this process, some of the iron was absorbed into the
copper precipitates, and the remainder of the iron lost its physical identity and became a part of the iron sulphate
solution. The copper precipitate was then transported outside Nevada for further refining, which removed the
iron from the copper precipitate and produced refined copper. See 55-74 Op. Att'y Gen. 180-81 (1955).
Opinion 74 cites State v. Southern Kraft Corporation, 8 So. 2d 886 (Ala. 1942), as the case in which the
circumstances and conditions best approximated those at issue in Opinion 74. Southern Kraft concerned
chemicals used in an Alabama paper manufacturing process. The court in Southern Kraft held that the chemicals
were excluded from taxation because they did, in fact, enter into and become a component part of the finished
pulp or paper, and . . . a chemical analysis of the completed product would reveal the exempt ingredients.55-74
Op. Att'y Gen. 181 (1955).
The iron in Opinion 74 was a dual-purpose item, serving two roles in the manufacturing process: it produced
a chemical reaction, which caused the copper to precipitate, and the iron also became incorporated as an
ingredient of the copper precipitate. Similarly, in the present case, the steel grinding balls, steel kiln chains,
kiln bricks and castable materials also serve dual purposes:
........................................
chains, kiln bricks and castable materials also serve dual purposes: the items assist the manufacturing process,
but also gradually disintegrate and become a necessary part of the final product.
Unlike the present case, the iron in Opinion 74 did not remain in the finished product, which was refined
copper. The opinion acknowledged that because the iron did not remain in the finished product, the facts
presented a borderline case. 55-74 Op. Att'y Gen. 182 (1955). However, because the iron remained
incorporated in the product while it was undergoing processing in Nevada, the Opinion concluded that the iron
was excluded from tax as a sale-for-resale. See id.
Nevada Cement also cites Lone Star Industries, Inc. v. State, Department of Revenue, 647 P.2d 1013 (Wash.
1982), for support. In Lone Star, the Washington Supreme Court specifically rejected the primary purpose test
imposed by the Washington Department of Revenue. The court held that the purchase of iron grinding balls and
firebrick, used in the manufacture of Portland Cement, was not subject to a retail sales tax or use tax. See id. at
1015. The court emphasized the fact that the iron grinding balls and firebrick actually supply essential
ingredients or components of the finished product. Id. at 1016. Washington's definition of retail sale or sale
at retail means every sale of tangible personal property except purchases for the purpose of consuming the
property purchased in producing for sale a new article of tangible personal property.
3
Id. at 1014-15. This
definition clearly differs from NRS 372.080 because it does not require that the finished product be transported
out of the state for use.
While NRS 372.080 does not specifically preclude dual-purpose items from exemption, it does not
specifically permit such items either. Under Opinion 74, it appears as though a dual-purpose item could be
exempted. However, even if this court should apply a physical-ingredient test, which may allow for the
exemption of dual-purpose items under NRS 372.080, we conclude that Nevada Cement has not shown that it
qualifies for such an exemption. NRS 372.080 requires that the final product into which the property is
incorporated be transported outside the state for use outside the state. In the present case, it is undisputed that
some of the product is transported outside Nevada and some remains within the state. Accordingly, we hold that
the district court erred by applying a physical-ingredient test under NRS 372.080 to the items purchased by
Nevada Cement.
__________

3
NRS 372.050 defines retail sale or sale at retail as a sale for any purpose other than resale in the regular
course of business.
........................................
[Headnote 3]
The Commission argues that the primary purpose test is the proper test to apply to the instant case. The
Nevada sales tax is imposed on the retail sale of tangible personal property to consumers. See NRS 372.105;
NRS 374.110. A retail sale or sale at retail is defined as a sale for any purpose other than resale in the
regular course of business of tangible personal property. NRS 372.050. Thus, the Commission argues that all
sales for any purpose other than resale are subject to sales and use tax. Accordingly, if a dual-purpose item is
purchased and one purpose is not resale, under the primary purpose test, the sales and use tax would apply. In
order for a sale to qualify as a nontaxable sale for resale, the sole purpose of the purchase must be resale.
In support of their argument, the Commission points to the position articulated by the Attorney General in
Op. Nev. Att'y Gen. 252 (October 26, 1961) (Opinion 252). Opinion 252 examined several of the statutes
included in Chapter 372 of the Nevada Revised Statutes to determine the liability of American Linen Supply
Company for payment of the Nevada use tax with respect to purchases of linens made by it from its wholly
owned subsidiary, the American Uniform Company. In considering the language of NRS 372.050, the opinion
noted that
the wording of NRS 372.050 makes the legislative purpose reasonably clear to exempt only property
solely used for resale, because any purpose would include all purposes generally. The words other
than narrow the exempted purpose down to the singular. It is, therefore, reasonable to conclude that
using purchased material in linen supply services and subsequently selling such articles after such useage
[sic] will not carry with it the singular exemption from the sales tax as created by the act.
61-252 Op. Att'y Gen. 106 (1961) (citations omitted). The Commission argues that this is a clear interpretation
of NRS 372.050 as a primary purpose test.
The Commission also argues that the approach adopted by the California Supreme Court is persuasive in the
present case. The California Supreme Court has determined that the primary purpose test is the proper method
for determining whether a sale is taxable as a retail sale or exempt as a sale for resale under a statute nearly
identical to NRS 372.050.
4
See Kaiser Steel Corp. v. State Bd. of Equal., 593 P.2d 864 (Cal. 1979). The Kaiser
court held that the primary purpose test was proper to determine the exemption of sales of property for the
purpose of physically incorporating it into the manufactured article to be sold."
__________

4
California Revenue and Taxation Code section 6007 defines a retail sale as a sale for any purpose other
than resale in the regular course of business in the form of tangible personal property.
........................................
incorporating it into the manufactured article to be sold. See id. at 866.
[Headnote 4]
We conclude that the primary purpose test is the appropriate standard to apply under NRS 372.050. We find
persuasive both Opinion 252 and the interpretation of the California Supreme Court in Kaiser. Additionally, the
plain language of NRS 372.050 clearly suggests a primary purpose test. NRS 372.050 states that a retail sale is a
sale for any purpose other than resale in the regular course of business (emphasis added). We conclude that
this language is properly interpreted to exempt from taxation only those items purchased for the express purpose
of resale. In the present case, it is undisputed that Nevada Cement purchased the machinery parts both for use in
the manufacture of Portland Cement and for the contribution of ingredients to the raw mix. This is clearly a dual
purpose, and under a primary purpose test the items would be subject to taxation. Accordingly, we hold that the
district court erred by applying a physical-ingredient test.
5

[Headnote 5]
Finally, Nevada Cement argues that the Department has historically followed a physical-ingredient rule. At
the administrative hearing, the Department's counsel conceded that the steel grinding balls, steel kiln chain, kiln
brick and castable materials were incorporated into the finished product and should be exempt from the sales and
use tax. Nevada Cement now argues that this concession and Opinion 74 demonstrate that the Department has
historically followed a physical-ingredient rule to distinguish a retail sale from a sale for resale.
6

We conclude that Nevada Cement has failed to show that the Department has historically followed a
physical-ingredient test. The argument offered by the Department's counsel was made when Nevada Cement was
seeking exclusion of eleven different items, not just the four wholly incorporated into the finished product. Also,
Opinion 74 examines a statute not at issue in the present case.
__________

5
The Commission also argues that the items at issue in the instant case are subject to the sales and use tax
pursuant to the current tax regulation pertaining to the tax treatment of manufacturers. See NAC 372.370.
However, in light of our previous conclusion that the items at issue are subject to the sales and use tax under
NRS 372.050, we need not consider this issue.

6
Nevada Cement also argues that the Commission is engaging in rulemaking in violation of the Nevada
Administrative Procedures Act, which requires notice and public hearing for all proposed regulations or
amendments to existing regulations. See NRS 233B.060. However, we conclude that the Commission is not
promulgating regulations because the statute is being interpreted on its face and applied in a specific context. See
K-Mart Corporation v. SIIS, 101 Nev. 12, 16, 693 P.2d 562, 565 (1985).
........................................
sent case. Accordingly, we conclude that this does not show a historical pattern or use of the physical-ingredient
test.
CONCLUSION
Based on the foregoing analysis, we conclude that the primary purpose test is the proper test to analyze
proposed exemptions under NRS 372.050. We further conclude that the district court erred in applying the
physical-ingredient test in the instant matter. Accordingly, we reverse the order of the district court holding that
Nevada Cement is entitled to a refund and remand this matter to the district court for further proceedings.
____________
116 Nev. 886, 886 (2000) Kantor v. Kantor
JANET KANTOR, Appellant, v. GARY KANTOR, Respondent.
No. 33659
JANET KANTOR, Appellant, v. GARY KANTOR, Respondent.
No. 34185
September 15, 2000 8 P.3d 825
Consolidated appeals from the district court's decree of divorce, applying the provisions of a premarital
agreement, and an order of the district court awarding respondent attorney's fees. Eighth Judicial District Court,
Clark County; Robert E. Gaston, Judge (No. 33659); Gerald W. Hardcastle, Judge (No. 34185).
1

In dissolution proceeding, wife moved to amend her answer to deny validity of premarital agreement. The
district court denied wife's motion and applied agreement's provisions to determine that husband's income from
kidney dialysis business was not community property. Former wife appealed. Subsequently, the district court
granted husband's motion for attorney's fees in connection with wife's motion to amend, awarding him
$19,580.00. Former wife appealed. On consolidated appeals, the supreme court held that: (1) denying wife's
motion to amend was not an abuse of trial court's discretion; (2) trial court was not obliged to independently
determine validity and substantive fairness of premarital agreement, given former wife's admission as to its
validity; (3) former husband was entitled to an award of attorney's fees under indemnity provision of premarital
agreement; and (4) awarding former husband $19,5S0.00 in attorney's fees was not an abuse of
discretion.
__________

1
Judge Robert E. Gaston presided over the divorce proceedings, but Judge Gerald W. Hardcastle ruled on the
respondent's motion for attorney's fees.
........................................
husband $19,580.00 in attorney's fees was not an abuse of discretion.
Affirmed.
Dowling, Myers & Helm, LLP, Las Vegas, for Appellant.
Lemons Grundy & Eisenberg, Reno; Ecker & Standish, Ltd., Las Vegas, for Respondent.
1. Divorce.
Denying wife's motion to amend her amended answer in dissolution proceeding to challenge validity of premarital
agreement was not an abuse of trial court's discretion. Motion was filed on the eve of trial, wife was dilatory in requesting
leave to amend, and parties relied on the validity of the premarital agreement, with wife receiving $100,000.00 under terms of
the agreement and husband continuing to employ same attorneys who drafted agreement, even though amendment probably
would have resulted in their disqualification. NRCP 15(a).
2. Pleading.
Although the court rule governing amendment to pleadings states that leave to amend shall be given when justice so
requires, this does not mean that a trial judge may not, in a proper case, deny a motion to amend. NRCP 15(a).
3. Pleading.
Sufficient reasons to deny a motion to amend a pleading include undue delay, bad faith or dilatory motives on the part of
the movant. NRCP 15(a).
4. Appeal and Error; Pleading.
Motion for leave to amend a pleading is addressed to the sound discretion of the trial court, and its action in denying such
a motion will not be held to be error absent a showing of abuse of discretion. NRCP 15(a).
5. Divorce.
Substantial evidence that former wife was aware that former husband's income from his kidney dialysis business was
separate from income from his medical practice, which income premarital agreement defined as community property,
supported finding that former wife was dilatory in requesting leave to amend her answer to challenge validity of premarital
agreement.
6. Divorce.
District court was under no obligation to independently determine the validity and substantive fairness of premarital
agreement, where former wife's amended answer admitted the validity of the agreement.
Generally, a timely notice of appeal divests the district court of jurisdiction to act and vests jurisdiction in the supreme
court.
8. Divorce.
Decree of divorce was not interlocutory order which could only have been appealed by obtaining a certification. NRS
125.130(1); NRCP 54(b).
9. Divorce.
Issue of attorney's fees was collateral to denial of former wife's motion for leave to amend her amended answer and the
decree of divorce and did not affect the merits of her appeal.
........................................
and did not affect the merits of her appeal. Thus, district court had jurisdiction to rule on former husband's motion for attorney's fees
incurred in opposing former wife's motion to amend her answer.
10. Divorce.
Former husband was entitled to an award of attorney's fees under indemnity provision of premarital agreement. Even though
agreement also contained a general provision prohibiting an award of attorney's fees to either party, specific indemnity provision
entitled a prevailing party to recover costs, including attorney's fees, from the party challenging the validity of the agreement, and
former husband prevailed on issue of agreement's validity.
11. Divorce.
Awarding former husband $19,580.00 in attorney's fees to oppose former wife's motion to amend her amended answer was not an
abuse of discretion. District court was provided with a detailed breakdown of the work performed and the substantial hours billed for
the work and court found that the amount requested was reasonable under the circumstances.
OPINION
Per Curiam:
This is a multimillion dollar divorce case involving a premarital agreement. Appellant Janet Kantor
challenges (1) the district court's denial of her motion to amend her answer; (2) the district court's failure to
determine the validity and substantive fairness of the premarital agreement before applying its provisions;
and (3) the district court's award of attorney's fees. We affirm.
FACTS AND PROCEDURAL HISTORY
Dr. Gary Kantor is a medical doctor specializing in nephrology, which is the treatment of kidney disorders
and diseases. Gary's practice, incorporated as a professional corporation, is named Kantor Nephrology
Consultants, Ltd. (KNC). Gary also has formed separate business entities which provide kidney dialysis
services. These businesses are collectively known as the Renal Dialysis Center (RDC). Because RDC is not
a professional corporation, RDC cannot collect revenue for a physician's services. Therefore, when Gary
renders personal medical treatment at an RDC facility, his services are billed through KNC.
Before Gary married Janet on November 22, 1990, the parties entered into a premarital agreement. Gary
and Janet were represented by separate counsel, although Gary paid Janet's attorney for his services. Under
the premarital agreement, Gary and Janet agreed that the income of the other party would be that party's
separate property, except as otherwise provided in the agreement. Paragraph 2.2 contained Janet's
acknowledgment, which stated:
........................................
WIFE acknowledges that she understands that, except for this AGREEMENT, the earnings and income
resulting from the personal services, skill, effort and work of HUSBAND after the parties' marriage
would be community property in which she may have an interest, but that by this AGREEMENT such
earnings and income are made HUSBAND's separate property, except as specifically set forth herein to
the contrary. WIFE further acknowledges that the income from HUSBAND's separate property is his
separate property.
(Emphasis added.)
The agreement designated some of Gary's earnings as community property. Paragraph 6.1 of the agreement
stated, in part, that:
[I]t is agreed that any and all salary or fees received by HUSBAND in exchange for his provision of
personal medical care and services (as a practicing physician) shall be community property. The parties
acknowledge that, presently, all such salary or fees come to HUSBAND in the form of a salary from
Kantor Nephrology Consultants, Limited. . . .
Janet contends that she was never informed as to the nature and amount of Gary's earnings, specifically his
income from RDC. She further contends that, based on Paragraph 6.1 and Gary's representations, she understood
that all of Gary's salary and income were derived from KNC, and were therefore community property.
Gary, on the other hand, claims that, prior to executing the premarital agreement, he informed Janet that his
expected income from KNC was in excess of $500,000.00 per year and that his income from RDC would be
substantially higher than $500,000.00 per year. Exhibits to the premarital agreement indicate that Janet had
assets worth over $7,000,000.00 and that Gary had assets worth nearly $22,000,000.00. Gary's stock ownership
in KNC and RDC were listed as separate assets in these exhibits.
Gary filed for divorce on October 22, 1997. The second paragraph of the complaint alleged that the
premarital agreement was valid and enforceable. Janet's original answer denied the allegations contained in the
second paragraph of the complaint on the ground that Janet was without sufficient information with which to
form a belief as to the truth of said allegations.
Because Gary's attorneys in the divorce proceedings were the same attorneys who represented Gary in the
preparation and drafting of the premarital agreement, they were concerned that they would be disqualified as
trial counsel if called as witnesses concerning the validity of the premarital agreement. One of Gary's attorneys
then discussed the issue with Janet's attorney. On February 13, 1998, Janet filed an amended answer, which
admitted the validity of the premarital agreement.
........................................
ted the validity of the premarital agreement. This resolved any concerns regarding the disqualification of Gary's
attorneys.
A one-day bench trial was scheduled for August 14, 1998. Prior to that, on August 5, 1998, one of Gary's
attorneys deposed Janet's accounting expert. During the deposition, the expert presented two reports regarding
his calculations of community income. The first report concerned only income from KNC during the marriage. A
second report included Gary's income from RDC earned during the marriage, which the expert contended should
also be included as community property. Apparently this was the first time it was suggested that Gary's income
from RDC should be considered community property. As a result, the original trial date was vacated and trial
was re-set for November 20, 1998.
On September 21, 1998, Janet's attorney requested depositions from Gary's attorneys. On September 30,
1998, Gary filed a motion for a protective order, seeking to prevent his attorneys from being deposed. Later that
same day, Janet filed a motion to amend her amended answer in order to challenge the validity of the premarital
agreement. Gary filed a written opposition to the motion. The district court thereafter denied the motion.
The trial was held on November 20, 1998. Janet's accounting expert testified that the community was due
more than $5,000,000.00 as a result of Gary's income from RDC during the marriage. The district court
disagreed and ruled that Gary's income from RDC was not derived from the rendering of personal services as a
practicing physician, and therefore was not community property under Paragraph 6.1 of the agreement.
During trial, Gary requested attorney's fees arising out of his opposition to Janet's motion to amend her
amended answer. The district court stated that Gary would have to file a motion for attorney's fees. Paragraph
10.2 of the premarital agreement states that [t]he parties confirm and agree that, in the event of a dissolution of
the parties' marriage, neither party shall make a claim for attorneys' fees against the other, whether by way of
preliminary motion or at the time of trial. However, Paragraph 12.5 contains a specific indemnity provision
which states that:
Each party hereunder shall be indemnified for and against all loss, damages, costs and expenses
(including, but not limited to, attorneys' fees and costs incurred at the trial and appellate levels) as a result
of or arising from any demand, claim or suit by or on behalf of either party hereto contesting or
attempting to modify, change, set aside, nullify, or cancel this AGREEMENT or any part or provision of
this AGREEMENT for any reason whatsoever. The indemnity provisions of this AGREEMENT
shall specifically apply to costs, expenses and attorneys' fees, as defined herein,
incurred by a party successfully seeking enforcement of this AGREEMENT or any
provision hereof.
........................................
provisions of this AGREEMENT shall specifically apply to costs, expenses and attorneys' fees, as
defined herein, incurred by a party successfully seeking enforcement of this AGREEMENT or any
provision hereof.
The findings of fact, conclusions of law and decree of divorce was filed on December 23, 1998. The district
court's order stated that it would defer ruling on the issue of Gary's request for attorney's fees in order to give the
parties an opportunity to settle this issue. Janet filed her notice of appeal on January 21, 1999. On January 27,
1999, Gary filed a motion for attorney's fees pursuant to the indemnity provision in the premarital agreement.
Janet objected to this motion, in part, on the ground that the district court lacked jurisdiction to award attorney's
fees after she filed her notice of appeal. The district court ruled that it retained jurisdiction and awarded Gary
attorney's fees in the amount of $19,580.00. Janet then appealed the district court's order granting Gary
attorney's fees. By order of this court, we consolidated Janet's appeals.
DISCUSSION
Whether the district court abused its discretion by denying Janet's motion to amend her amended answer
[Headnotes 1-4]
After a responsive pleading is filed, a party may amend his or her pleading only by leave of court or by
written consent of the adverse party; and leave shall be freely given when justice so requires. NRCP 15(a).
Although the rule states that leave to amend shall be given when justice so requires, [t]his does not . . . mean
that a trial judge may not, in a proper case, deny a motion to amend. If that were the intent, leave of court
would not be required. Stephens v. Southern Nevada Music Co., 89 Nev. 104, 105, 507 P.2d 138, 139 (1973).
Sufficient reasons to deny a motion to amend a pleading include undue delay, bad faith or dilatory motives on
the part of the movant. See id. at 105-06, 507 P.2d at 139. Furthermore, [a] motion for leave to amend pursuant
to NRCP 15(a) is addressed to the sound discretion of the trial court, and its action in denying such a motion will
not be held to be error in the absence of a showing of abuse of discretion. Connell v. Carl's Air Conditioning,
97 Nev. 436, 439, 634 P.2d 673, 675 (1981).
In this case, the district court denied Janet's motion for leave to amend her amended answer because the
parties relied on the validity of the premarital agreement, the motion was filed on the eve of trial and Janet was
dilatory in requesting leave to amend.
........................................
amend. We conclude that the district court did not abuse its discretion by denying Janet's motion for leave to
amend her amended answer.
The district court found that both parties relied on the validity of the agreement. Janet received $100,000.00
under the terms of the agreement. Additionally, Gary, in reliance on the validity of the agreement, continued to
employ the same attorneys who drafted the agreement. Since Gary's attorneys were involved in the drafting and
execution of the premarital agreement, they would have become key witnesses at the divorce trial had Janet been
allowed to challenge the validity of the premarital agreement. Therefore, Janet's amendment to her amended
answer would probably have resulted in the disqualification of Gary's attorneys under SCR 178, which generally
prohibits a lawyer from trying a case if the lawyer is a necessary witness in the case.
2
By October of 1998,
when Janet sought to amend her answer to challenge the validity of the premarital agreement, Gary had
expended substantial sums in legal fees.
Janet's counsel informed the court that she would not request the disqualification of Gary's attorneys.
However, Janet cites no legal authority for the proposition that the opposing party may waive a violation of an
ethical rule such as SCR 178. Therefore, we conclude that the district court's concern about the disqualification
of Gary's attorneys was reasonable.
After eleven months had passed since the filing of the complaint, Janet filed a motion to amend her amended
answer seven weeks before trial. The district court found that Janet filed the motion on the eve of trial.
Although Janet's counsel informed the court that she would not request a continuance of the trial, we agree with
the district court that, in this multimillion dollar divorce case, a challenge to the validity of the premarital
agreement made seven weeks before trial would have necessitated an extensive delay.
The district court also found that Janet was dilatory in requesting leave to amend her amended answer. Janet
contends that upon learning that Gary was attempting to differentiate between his income from KNC and his
income from RDC, Janet promptly sought to amend her answer in order to challenge the validity
of the premarital agreement.
__________

2
SCR 178 provides that:
1. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness
except where:
(a) The testimony relates to an uncontested issue;
(b) The testimony relates to the nature and value of legal services rendered in the case; or
(c) Disqualification of the lawyer would work substantial hardship on the client.
2. A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be
called as a witness unless precluded from doing so by Rule 157 or Rule 159.
........................................
sought to amend her answer in order to challenge the validity of the premarital agreement. Janet also contends
that she did not learn that Gary received income from sources other than KNC until after her expert analyzed
financial documents obtained through discovery.
[Headnote 5]
We conclude that the district court's finding that Janet was dilatory in requesting leave to amend is supported
by substantial evidence. The exhibits attached to the premarital agreement listed KNC and RDC as separate
business entities. Also, Paragraph 6.1 of the agreement indicated that Gary's income for personal medical care
and services (as a practicing physician) shall be community property. This paragraph further explained that all
such salary or fees come to HUSBAND in the form of a salary from [KNC]. Furthermore, Janet was
represented by counsel when she executed the agreement. This evidence indicates that Janet was aware that
Gary's income from RDC was separate from income from KNC. Therefore, we conclude that the district court's
finding that Janet was dilatory in her request for leave to amend was reasonable.
In sum, we conclude that the district court did not abuse its discretion by denying Janet's motion for leave to
amend her amended answer.
Whether the district court erred by applying the terms of the premarital agreement
[Headnote 6]
Janet contends that the district court erred by applying the terms of the premarital agreement without
determining its validity and substantive fairness. Janet primarily argues that Gary, in violation of the fiduciary
duties that he owed to her, failed to make adequate disclosures regarding his income before she signed the
agreement. See, e.g., Fick v. Fick, 109 Nev. 458, 464, 851 P.2d 445, 450-51 (1993) (recognizing that fiancs
owe a fiduciary duty to each other which requires them to provide a full and fair disclosure of the nature and
extent of their property and income prior to executing a premarital agreement).
The legislature adopted the Uniform Premarital Agreement Act in 1989. The provisions of the act are
applicable to any premarital agreement executed on or after October 1, 1989. 1989 Nev. Stat., ch. 472, 22, at
1009. Since Janet and Gary executed their agreement in 1990, the provisions of the act, codified in NRS Chapter
123A, apply. NRS 123A.080 provides that:
1. A premarital agreement is not enforceable if the party against whom enforcement is sought proves
that:
........................................
(a) That party did not execute the agreement voluntarily;
(b) The agreement was unconscionable when it was executed; or
(c) Before execution of the agreement, that party:
(1) Was not provided a fair and reasonable disclosure of the property or financial obligations of
the other party;
(2) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or
financial obligations of the other party beyond the disclosure provided; and
(3) Did not have, or reasonably could not have had, an adequate knowledge of the property or
financial obligations of the other party.
NRS 123A.080 puts the burden of proving the invalidity of the agreement on the party challenging the
agreement. Since Janet's amended answer admitted the validity of the premarital agreement, we conclude that the
district court was under no obligation to independently determine the validity and substantive fairness of the
agreement.
Whether the district court erred by awarding Gary attorney's fees related to his opposition to Janet's motion to
amend her amended answer
Janet challenges the district court's award of attorney's fees on the grounds that: (1) the district court lost
jurisdiction to award such fees once Janet filed her notice of appeal; (2) Gary was not entitled to any attorney's
fees under the terms of the premarital agreement; and (3) the amount of attorney's fees was unreasonable.
[Headnotes 7-9]
Generally, a timely notice of appeal divests the district court of jurisdiction to act and vests jurisdiction in
this court. Rust v. Clark Cty. School District, 103 Nev. 686, 688, 747 P.2d 1380, 1382 (1987). The district
court ruled that the decree of divorce was an interlocutory order, and therefore, Janet should have sought
NRCP 54(b) certification before appealing the decree of divorce.
3
We conclude that the district court erred by
ruling that the decree of divorce was an interlocutory order which could not be appealed
absent a certification pursuant to NRCP 54{b).
__________

3
NRCP 54(b) provides that:
When more than one claim for relief is presented in an action, whether as a claim, counterclaim,
cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of
a final judgment as to one or more but fewer than all of the claims or parties only upon an express
determination that there is no just reason for delay and upon an express direction for the entry of
judgment. In the absence
........................................
the decree of divorce was an interlocutory order which could not be appealed absent a certification pursuant to
NRCP 54(b). See NRS 125.130(1) (providing that a judgment or decree of divorce granted pursuant to the
provisions of this chapter is a final decree). However, where the issue is entirely collateral to and independent
from that part of the case taken up by appeal, and in no way affected the merits of the appeal[,] this court has
allowed district courts to grant relief while the case was on appeal. Bongiovi v. Bongiovi, 94 Nev. 321, 322, 579
P.2d 1246, 1247 (1978). We conclude that the issue of attorney's fees was collateral to that part of the case
which Janet appealed, i.e., the denial of her motion for leave to amend her amended answer and the decree of
divorce. Since this collateral matter did not affect the merits of Janet's appeal, we conclude that the district court
did have jurisdiction to rule on Gary's motion for attorney's fees.
[Headnote 10]
Janet next contends that Gary was not entitled to an award of attorney's fees under the terms of the premarital
agreement. As previously stated, Paragraph 10.2 contained a general provision prohibiting an award of attorney's
fees to either party. However, the agreement also contained a specific indemnity provision in Paragraph 12.5
which entitled a prevailing party to recover costs, including attorney's fees, from the party challenging the
validity of the agreement.
Janet argues that Gary was not entitled to recover attorney's fees under the indemnity provision because Janet
never had the opportunity to litigate the validity of the agreement on the merits. We conclude that Janet's
argument lacks merit because the terms of the indemnity provision state that the prevailing party may recover
attorney's fees as a result of or arising from any demand, claim or suit by or on behalf of either party hereto
contesting or attempting to modify, change, set aside, nullify, or cancel this AGREEMENT or any part or
provision of this AGREEMENT for any reason whatsoever. (Emphasis added.) Janet's motion to amend her
amended complaint denying the validity of the agreement was an attempt to set aside and nullify the agreement.
Therefore, the district court did not err by awarding Gary attorney's fees related to his opposition to Janet's
motion for leave to amend.
__________
of such determination and direction, any order or other form of decision, however designated, which
adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not
terminate the action as to any of the claims or parties, and the order or other form of decision is subject to
revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities
of all the parties.
........................................
[Headnote 11]
Finally, Janet contends that the district court's award of $19,580.00 in attorney's fees to oppose Janet's
motion to amend her amended answer was unreasonable. While we express our own surprise at the size of this
award, we note that the district court was provided with a detailed breakdown of the work performed and the
substantial hours billed for the work. The court found that the amount requested was reasonable under the
circumstances. We conclude that the district court did not abuse its discretion by awarding such a large amount
of attorney's fees in this matter. See Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 26, 866 P.2d 1138,
1139-40 (1994) (recognizing that a district court's award of fees and costs will not be disturbed upon appeal
absent an abuse of discretion).
For these reasons, we conclude that the district court did not err by awarding Gary attorney's fees related to
his opposition of Janet's motion for leave to amend her amended answer.
CONCLUSION
In sum, we conclude that the district court did not abuse its discretion by denying Janet's motion for leave to
amend her amended answer. Since Janet admitted the validity of the premarital agreement in her answer, the
district court did not err by applying the terms of the agreement. Although the district court erred by finding
that the divorce decree was an interlocutory order, we conclude that the district court had jurisdiction to
determine Gary's motion for attorney's fees because that issue was collateral to and independent from that part
of the case taken up on appeal. We further conclude that Gary was entitled to recover attorney's fees under the
indemnity provision of the premarital agreement and that the amount of the award was not an abuse of
discretion.
____________
116 Nev. 896, 896 (2000) LFC Mktg. Group, Inc. v. Loomis
LFC MARKETING GROUP, INC., Appellant, v. CEBE W. LOOMIS, ANDREW F. LOOMIS, CHRISTIAN
W. LOOMIS and JUST C. LOOMIS, Respondents.
No. 31608
September 19, 2000 8 P.3d 841
Appeal from an order granting a writ of attachment and denying a third-party claim to the attached property.
Second Judicial District Court, Washoe County; Brent T. Adams, Judge.
Judgment creditor obtained ex parte writ of attachment in attempt to satisfy judgment against individual from
assets held in escrow for corporation he allegedly controlled.
........................................
escrow for corporation he allegedly controlled. Corporation filed third-party claim asserting sole ownership of
assets. The district court determined that corporation was alter ego of individual and allowed satisfaction of
judgment out of attached assets. Corporation appealed. The supreme court held that: (1) writ of attachment may
be used post-judgment, (2) alter ego doctrine may be applied in reverse to reach corporation's assets to satisfy
controlling individual's debt, and (3) substantial evidence supported determination that corporation was alter ego
of individual.
Affirmed.
Skinner Sutton Watson & Rounds and Philip A. Olsen, Incline Village, for Appellant.
Richard G. Hill and William Patterson Cashill, Reno, for Respondents.
1. Attachment.
Writ of attachment may be used post-judgment under statute that allows application for writ of attachment at time of
issuance of summons or at any time thereafter. NRS 31.010.
2. Corporations.
Essence of alter ego doctrine, which allows piercing of the corporate shield, is to do justice whenever it appears that the
protections provided by the corporate form are being abused.
3. Corporations.
Reverse piercing, under which alter ego doctrine is applied to recover individual debt from assets of corporation
determined to be alter ego of individual debtor, is appropriate in those limited instances where the particular facts and equities
show the existence of an alter ego relationship and require that the corporation fiction be ignored so that justice may be
promoted.
Exception to deferential standard normally applied to trial court's application of alter ego doctrine exists when it is clear
that a wrong conclusion has been reached.
5. Corporations.
Following factors, though not conclusive, may indicate the existence of an alter ego relationship: (1) commingling of funds,
(2) undercapitalization, (3) unauthorized diversion of funds, (4) treatment of corporate assets as the individual's own, and (5)
failure to observe corporate formalities.
6. Corporations.
Absence of corporate ownership by individual debtor does not automatically preclude application of reverse piercing.
Circumstances of each case and interests of justice control.
7. Corporations.
Evidence, that individual debtor, despite not owning single share of corporation, held himself out as its president, CEO,
and primary owner, acted as ultimate authority for all of corporation's dealings, and allowed corporation's bills to be
paid by related entity owned by his wife,
........................................
corporation's bills to be paid by related entity owned by his wife, showed sufficient unity of ownership and interest to support
determination that corporation was alter ego of individual.
8. Corporations.
In determining whether corporate veil can be pierced to satisfy debt of individual out of corporate assets, potential harm to
innocent shareholders or corporate creditors must be considered.
9. Corporations.
Evidence that judgment creditors had been unable to satisfy judgment against individual debtor for three years, despite debtor's
being dominant force behind Nevada corporation, and that debtor's brother, as corporation's sole shareholder, would not be harmed if
debt was collected from corporate assets, supported finding that refusing to allow reverse piercing would sanction fraud or promote
injustice.
OPINION
Per Curiam:
SUMMARY
This case presents us with two issues: (1) whether a writ of attachment may be used to secure property
after a judgment has already been obtained; and (2) whether a judgment creditor can pierce the corporate
veil using a reverse alter ego analysis to reach the assets of a corporation that is allegedly controlled by the
judgment debtor. Since 1996, Cebe, Andrew, Christian and Just Loomis (the Loomises) have been trying to
recover a $25,000.00 judgment from William Lange (William) concerning a failed real estate transaction
with William's brokerage firm Lange Financial Corporation (LFC). Unable to satisfy their judgment, the
Loomises obtained a writ of attachment on commissions payable to LFC Marketing Group, Inc. (LFC
Marketing) held in escrow by a Nevada title company. LFC Marketing, whose sole shareholder is William's
brother Robert Lange (Robert), disputed that William was entitled to any of the commissions and requested
a hearing on the writ to settle title to the deposited monies. The district court determined that LFC Marketing
was the alter ego of William, and thus ordered that the Loomises' judgment be satisfied out of the attached
commissions.
We first conclude that the procedure employed by the Loomisesusing a writ of attachment to aid in
post-judgment recoveryis allowable under our statutes. Further, we conclude that in certain limited
circumstances, the alter ego doctrine may be applied to recover an individual debt from the assets of a
corporation determined to be the alter ego of the individual debtor.
........................................
Finally, we conclude that there was substantial evidence in this case to support the district court's finding.
STATEMENT OF FACTS
The underlying facts of the transaction that ultimately resulted in a judgment in favor of the Loomises
against William are recited in Loomis v. Lange Financial Corp., 109 Nev. 1121, 865 P.2d 1161 (1993). The
relevant judgment in that case was the district court order requiring William to pay the Loomises $25,000.00 in
attorney fees.
This case involves the Loomises' attempts to collect the judgment owed by William, a California resident and
sole shareholder of LFC, who currently does not have a Nevada real estate license.
LFC, a California brokerage firm with whom the Loomises contracted to market and sell property owned by
the Loomises in downtown Reno, is associated with a consortium of smaller companies, collectively known as
the LFC Real Estate Network. Included in this network is LFC Marketing, a Nevada corporation performing
real estate brokering services whose sole shareholder and president is William's brother Robert. A month after
LFC Marketing's incorporation, William was elected vice president for the purpose of conducting related
activities, but was not authorized to conduct any activity on behalf of LFC Marketing that required a real
estate license. Also included in the network is LFC Communications Limited (LFC Communications), a
California entity performing advertising services whose sole shareholder is William's wife and whose president
is William.
Importantly, the Nevada Land and Resources Company (NLRC) hired LFC Marketing and LFC
Communications to assist in selling its substantial Nevada real estate holdings. As a result of services provided
by LFC Marketing, NLRC deposited funds in excess of $25,000.00 with a local Nevada title company to be paid
to LFC Marketing. Having learned of the NLRC deposit, the Loomises filed an ex parte motion for a writ of
attachment
1
on August 4, 1997, which requested the seizure of the deposited monies in the amount of
$25,000.00 plus interest to satisfy William's judgment debt.
Believing that the attached funds did not belong to William in any way, LFC Marketing filed a third-party
claim asserting sole ownership of the attached funds. Pursuant to NRS 31.070(5),
2
a hearing was
scheduled and held to settle the ownership of the property.
__________

1
The motion was made pursuant to the writ of attachment procedure of NRS 31.010. However, the motion
recognizes that the attachment requested is post-judgment, in contravention to the ordinary case where
attachment is a pre-judgment action.

2
NRS 31.070(5) provides that a third partyafter service of a written, verified claimis entitled to a
hearing to determine title to the property levied on.
........................................
hearing was scheduled and held to settle the ownership of the property.
At the hearing, which was not attended by William, the Loomises argued that LFC Marketing was the alter
ego of William, and thus sought to pierce the corporate veil in reverse to reach the deposited funds. In support of
their contention, the Loomises presented the following: (1) Robert's testimony that William wrote ninety percent
of LFC Marketing's correspondence to NLRC; (2) evidence that William negotiated and signed early drafts of
the marketing agreement between LFC Marketing and NLRC; (3) testimony from one of LFC Marketing's
brokers that William drafted the final marketing agreement but asked that the broker sign the final version on
LFC Marketing's behalf; (4) evidence that William hired and supervised LFC Marketing's brokers; (5) testimony
from NLRC's accountant that he dealt exclusively with William and believed William to be the ultimate
authority for all of LFC Marketing's dealings; (6) documentation indicating that William was holding himself out
to be the president and CEO and the primary owner of LFC Marketing; (7) evidence that LFC
Communications paid LFC Marketing's bills and that checks written to LFC Marketing should be made out only
to LFC; (8) evidence that William was being personally compensated for LFC Marketing's work; and (9)
evidence that William had negotiated a settlement agreement between the LFC entities and NLRC, and
determined how the proceeds were to be divided.
LFC Marketing presented the following evidence supporting its claim that William's participation in LFC
Marketing's activities was minimal: (1) testimony from Robert that he made LFC Marketing's decisions; (2)
testimony from the president of NLRC that he consulted Robert for marketing decisions and William for
advertising decisions, but also had joint meetings with the two; (3) testimony that the only reason William dealt
more with NLRC was because the parties had agreed that there should be only one point person; and (4)
testimony that inter-company checks were only used to pay incidental expenses.
At the conclusion of the hearing, the district court made an oral ruling concluding that LFC Marketing was
the alter ego of William, and thus granted the motion for writ of attachment. Further, the district court ordered
that the attached funds be released to the Loomises in satisfaction of the debt owed by William.
LFC Marketing appeals this order, claiming that the postjudgment writ of attachment procedure employed by
the Loomises was improper and that the district court erred in allowing the corporate veil to be pierced in
reverse.
........................................
DISCUSSION
Whether a writ of attachment may be used post-judgment to secure property to satisfy the judgment
LFC Marketing argues that the unusual procedure utilized by the Loomises hereusing a writ of attachment
in the post-judgment contextwas unprecedented and improper. Specifically, LFC Marketing contends that the
statutes governing the satisfaction of judgments required the Loomises to obtain a writ of execution, not
attachment, and to then issue a writ of garnishment, as the funds were in the hands of a third party, namely LFC
Marketing.
Typically, a writ of attachment is used as a pre-judgment remedy by which a plaintiff requests the court to
secure the property of the defendant so that it may be used in satisfaction of any judgment obtained. See 6 Am.
Jur. 2d Attachment and Garnishment 1 (1999). In contrast, a writ of execution is a post-judgment remedy by
which a successful plaintiff requests the court to enforce the judgment by seizing and delivering property owned
by the defendant in satisfaction of the debt. See 30 Am. Jur. 2d Executions and Enforcement of Judgments
43, 51 (1994). However, because attachment procedures are provided by statute, the issue of whether a writ of
attachment may be issued post-judgment is controlled by the terms of these statutes. We have often stated that
[w]here the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, there is no
room for construction, and the courts are not permitted to search for its meaning beyond the statute itself. '
Erwin v. State of Nevada, 111 Nev. 1535, 1538-39, 908 P.2d 1367, 1369 (1995) (quoting Charlie Brown Constr.
Co. v. Boulder City, 106 Nev. 497, 503, 797 P.2d 946, 949 (1990) (quoting State v. Jepsen, 46 Nev. 193, 196,
209 P. 501, 502 (1922))).
[Headnote 1]
The Nevada provisions regulating writs of attachment are contained in sections 31.010 through 31.220 of the
Nevada Revised Statutes. In particular, NRS 31.010 provides the general rule for when such writs may issue:
The plaintiff at the time of issuing the summons, or at any time thereafter, may apply to the court for
an order directing the clerk to issue a writ of attachment and thereby cause the property of the defendant
to be attached as security for the satisfaction of any judgment that may be recovered, unless the defendant
gives security to pay such judgment as provided in this chapter.
........................................
(Emphasis added.) We conclude that the plain language of this provision allows the unusual procedure of using a
writ of attachment post-judgment.
LFC Marketing argues that other language in the statutenamely, that a writ of attachment causes the
defendant's property to be attached as security for the satisfaction of any judgment that may be
recoveredsuggests that the writ is a pre-judgment remedy only. However, we conclude that the language
relied upon by LFC Marketing is ambiguous and unpersuasive in light of the plain and unambiguous provision
allowing a plaintiff to apply for a writ of attachment at the time of issuance of the summons or at any time
thereafter.
We further note that under both attachment and execution procedures, the rights of third parties claiming title
to the property levied upon is identical.
3
Specifically, a third party is entitled to a hearing within ten days of
service of the third party's written, verified claim to resolve title to the property. See NRS 31.070 (providing
third-party hearing in writ of attachment context); NRS 21.120(2) (providing that identical hearing procedure is
used for third parties in writ of execution context).
Therefore, we conclude that the Loomises' use of a writ of attachment to recover a post-judgment debt is
allowed under Nevada's existing statutory framework.
Whether the district court erred in allowing the corporate veil to be pierced in reverse
LFC Marketing first contends that the district court erred when it allowed the Loomises to satisfy their
judgment against William out of property belonging to LFC Marketing by piercing the corporate veil in reverse.
Specifically, LFC Marketing argues that there is no precedent in Nevada for such a remedy and contends that
the court's ruling resulted in fundamental unfairness to LFC Marketing by favoring the Loomises over other
parties who may have an interest in the money.
[Headnote 2]
Nevada has long recognized that although corporations are generally to be treated as separate legal
entities, the equitable remedy of piercing the corporate veil may be available to a plaintiff in circumstances
where it appears that the corporation is acting as the alter ego of a controlling individual. See McCleary Cattle
Co. v. Sewell, 73 Nev. 279, 317 P.2d 957 (1957) (early application of alter ego doctrine).
__________

3
We also note that in this case the Loomises are particularly benefited by those provisions allowing a writ of
attachment to issue without notice under certain circumstances. See NRS 31.017. Such circumstances include
when the debtor resides in another state or when the property sought to be attached is in danger of being
removed from the state. See id.
........................................
application of alter ego doctrine). Indeed, the essence of the alter ego doctrine is to do justice whenever it
appears that the protections provided by the corporate form are being abused. See Polaris Industrial Corp. v.
Kaplan, 103 Nev. 598, 603, 747 P.2d 884, 888 (1987).
While the classic alter ego situation involves a creditor reaching the personal assets of a controlling
individual to satisfy a corporation's debt, the reverse piercing situation involves a creditor reaching the assets
of a corporation to satisfy the debt of a corporate insider based on a showing that the corporate entity is really
the alter ego of the individual. See generally Gregory S. Crespi, The Reverse Piercing Doctrine: Applying
Appropriate Standards, 16 J. Corp. L. 33, 55-69 (1990) (reviewing the case law on outsider reverse piercing).
Although our case law has never directly addressed reverse piercing, most courts considering the issue have
allowed such piercing.
4
See, e.g., McCall Stock Farms, Inc. v. United States, 14 F.3d 1562, 1568 (Fed. Cir.
1993); Towe Antique Ford Foundation v. I.R.S., 999 F.2d 1387, 1390-94 (9th Cir. 1993); Zahra Spiritual Trust
v. United States, 910 F.2d 240, 243-45 (5th Cir. 1990); Select Creations, Inc. v. Paliafito Am., Inc., 852 F. Supp.
740, 773-74 (E.D. Wis. 1994); Taylor v. Newton, 257 P.2d 68, 72-73 (Cal. Ct. App. 1953); Cargill, Inc. v.
Hedge, 375 N.W.2d 477, 478-80 (Minn. 1985); State v. Easton, 647 N.Y.S.2d 904, 908-910 (App. Div. 1995);
cf. Floyd v. I.R.S., 151 F.3d 1295, 1298-1300 (10th Cir. 1998) (criticizing reverse piercing theory because
practice may unfairly prejudice innocent shareholders and harm a corporation's ability to raise credit).
[Headnote 3]
Conceptually, we conclude that reverse piercing is not inconsistent with traditional piercing in its goal of
preventing abuse of the corporate form. Indeed, [i]t is particularly appropriate to apply the alter ego doctrine in
reverse' when the controlling party uses the controlled entity to hide assets or secretly to conduct business to
avoid the pre-existing liability of the controlling party. Select Creations, 852 F. Supp. at 774. However, it
should be emphasized that [t]he corporate cloak is not lightly thrown aside and that the alter ego doctrine is an
exception to the general rule recognizing corporate independence.
__________

4
LFC Marketing contends that this court has considered the issue in Baer v. Amos J. Walker, Inc., 85 Nev.
219, 452 P.2d 916 (1969), where we denied recovery from a creditor trying to collect an individual debt from a
corporation controlled by the debtor. However, the decision in Baer was based on this court's conclusion that
there was no evidence of the individual debtor's control over the corporation or of fraud. See id. at 220-21, 452
P.2d at 917. Thus, although the Baer court recognized that the creditor was seeking to use the alter ego doctrine
in reverse, it did not expressly disapprove of such use. Accordingly, the holding in Baer does not control our
analysis here.
........................................
eral rule recognizing corporate independence. Baer v. Amos J. Walker, Inc., 85 Nev. 219, 220, 452 P.2d 916,
916 (1969). Accordingly, we conclude that reverse piercing is appropriate in those limited instances where the
particular facts and equities show the existence of an alter ego relationship and require that the corporate fiction
be ignored so that justice may be promoted.
Whether there was substantial evidence to support the district court's finding
LFC Marketing next argues that the district court erred in finding it to be the alter ego of William because
two of the requisite three elements of the doctrine were not demonstrated by substantial evidence.
[Headnote 4]
This court has stated that it will uphold a district court's determination with regard to the alter ego doctrine
if substantial evidence exists to support the decision. See Lorenz v. Beltio, Ltd., 114 Nev. 795, 807, 963 P.2d
488, 496 (1998). However, there is an exception to this deferential standard where it is clear that a wrong
conclusion has been reached. See Polaris Industrial Corp. v. Kaplan, 103 Nev. 598, 601, 747 P.2d 884, 886
(1987).
[Headnote 5]
The elements for finding an alter ego, which must be established by a preponderance of the evidence, are:
(1) the corporation must be influenced and governed by the person asserted to be the alter ego; (2) there
must be such unity of interest and ownership that one is inseparable from the other; and (3) the facts must
be such that adherence to the corporate fiction of a separate entity would, under the circumstances,
sanction [a] fraud or promote injustice.
Id. at 601, 747 P.2d at 886. Further, the following factors, though not conclusive, may indicate the existence of
an alter ego relationship: (1) commingling of funds; (2) undercapitalization; (3) unauthorized diversion of funds;
(4) treatment of corporate assets as the individual's own; and (5) failure to observe corporate formalities. See id.
at 601, 747 P.2d at 887. We have emphasized, however, that [t]here is no litmus test for determining when the
corporate fiction should be disregarded; the result depends on the circumstances of each case. Id. at 602, 747
P.2d at 887.
[Headnote 6]
First, LFC Marketing argues that the district court blurred the second elementunity of ownership and
interestwith the firstinfluence and control. LFC Marketing underscores the fact that William does not
own a single share of LFC Marketing, and thus argues that this element cannot be found.
........................................
William does not own a single share of LFC Marketing, and thus argues that this element cannot be found. We
disagree. Although ownership of corporate shares is a strong factor favoring unity of ownership and interest, the
absence of corporate ownership is not automatically a controlling event. Instead, the circumstances of each
case and the interests of justice should control. Id. This is especially true when considering the ease with which
corporations may be formed and shares issued in names other than the controlling individual. See State v.
Easton, 647 N.Y.S.2d 904, 909 (App. Div. 1995) (allowing a corporation's assets to be reached through reverse
piercing where the debtor did not own a single share of the corporation's stock).
[Headnote 7]
In this case, there was evidence that William acted as the ultimate authority for all of LFC Marketing's
dealings, had negotiated the marketing agreement with NLRC personally, and did not distinguish his interest
from the various Lange entities. Further, there was evidence that William considered himself to be the president
and CEO and the primary owner of LFC Marketing. Additionally, there was evidence that LFC
Communications paid LFC Marketing's bills and that a common account was used among the LFC entities.
Finally, there was testimony that William alone negotiated a settlement agreement with NLRC over a billing
dispute and determined which of the LFC entities received the proceeds. We conclude that this evidence is
adequate to support the district court's conclusion that there was a unity of interest and ownership.
Next, LFC Marketing alleges that the Loomises failed to show that adherence to the corporate entity would
sanction a fraud or promote injustice. We disagree. The record reveals that the Loomises were unable to recover
their judgment against William for over three years, despite William's being the dominating force behind a
Nevada corporation. Indeed, the evidence supports the district court's conclusion that the carefully designed
business arrangements between the LFC entities, William, and NLRC contributed to the Loomises' inability to
collect their judgment.
[Headnotes 8, 9]
We recognize, however, as the district court also did, that there are other equities to be considered in the
reverse piercing situationnamely, whether the rights of innocent shareholders or creditors are harmed by the
pierce. See Floyd v. I.R.S., 151 F.3d 1295, 1300 (10th Cir. 1998) (recognizing potential harm to innocent
shareholders or creditors when the corporate veil is pierced in reverse); Cargill, Inc. v. Hedge, 375 N.W.2d 477,
479 (Minn. 1985). In this case, the district court found that Robert, the sole shareholder of LFC
Marketing, would not be harmed by the attachment and that the pierce was otherwise
just.
........................................
shareholder of LFC Marketing, would not be harmed by the attachment and that the pierce was otherwise just.
We therefore conclude that the district court's conclusion that adherence to the corporate fiction would sanction
a fraud or promote injustice was supported by substantial evidence and proper under the circumstances.
CONCLUSION
We first conclude that the procedure of utilizing a writ of attachment in the post-judgment context is
allowable under Nevada's statutes. Next, we conclude that there are limited circumstances where the alter ego
doctrine may be applied in reverse in order to reach a corporation's assets to satisfy a controlling
individual's debt. Finally, we conclude that there was substantial evidence to support the district court's ruling
that LFC Marketing was the alter ego of William.
Accordingly, the district court's order granting and issuing the Loomises' writ of attachment is affirmed.
____________
ROBERT FULLERTON, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32295
CORINNE F. BENNETT, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32320
September 19, 2000 8 P.3d 848
Petition for rehearing of a consolidated appeal from judgments of conviction, pursuant to a jury verdict, of
twenty-one counts for each appellant of sale of an unregistered security. Second Judicial District Court, Washoe
County; Deborah A. Agosti, Judge.
Defendants were each convicted in the district court of 21 counts of sale of an unregistered security, and they
appealed. Cases were consolidated for review. The supreme court, 116 Nev. 435, 997 P.2d 807 (2000), affirmed
in part, reversed in part and remanded. State filed petition for rehearing. The supreme court held that defendant
produced sufficient evidence that commissions were not paid with respect to 17 of the transactions, thereby
indicating their entitlement to limited/small offering exemption from registration.
Petition granted in part, denied in part; opinion clarified; remanded.
........................................
Appellant Fullerton.
Karla K. Butko, Reno, for Appellant Bennett.
Frankie Sue Del Papa, Attorney General, and Grenville T. Pridham and Matthew S. Gabe, Deputies
Attorney General, Carson City, for Respondent.
Joseph C. Long, Norman, Oklahoma, for Amicus Curiae North American Securities Administrators
Association, Inc.
In a prosecution for offering to sell or selling an unregistered security, the State has the burden of proving that: (1) the defendant
offered or sold a security in the state, and (2) the security was not registered. NRS 90.460.
The State is not required to prove the lack of an exemption under the Uniform Securities Act until the defendant injects some
competent evidence showing his entitlement to the exemption; however, once the defendant produces such evidence, the State bears
the burden of proving beyond a reasonable doubt that the exemption does not apply. NRS 90.530, 90.690(2).
Defendants who were charged with 21 counts of sale of an unregistered security produced sufficient evidence that commissions
were not paid with respect to 17 of the transactions, thereby shifting burden to State to prove the nonavailability of limited/small
offering exemption from registration. Witness testified that he was paid commissions on six sales of stock, testimony only linked four
of commissions paid to specific counts, and defendant's testimony showed that he paid commissions on the sales identified by the
witness's testimony. NRS 90.460, 90.530(11)(c), 90.690(2).
OPINION ON REHEARING
Per Curiam:
Appellants were each convicted, pursuant to a jury verdict, of twenty-one counts of sale of an unregistered
security in violation of NRS 90.460. On appeal to this court, appellants' cases were consolidated for review.
On April 6, 2000, this court issued an opinion affirming each appellant's convictions for four counts of sale
of an unregistered security and reversing each appellant's convictions for the remaining seventeen counts on
grounds of insufficient evidence. See Fullerton v. State, 116 Nev. 435, 997 P.2d S07 {2000).
........................................
P.2d 807 (2000). Thereafter, the State timely petitioned this court for rehearing.
1

The State raises two issues on rehearing. First the State contends that this court overlooked or
misapprehended the applicable law with respect to the burdens of production and proof related to the
limited/small offering exemption at NRS 90.530(11). We are persuaded that rehearing is warranted as to this
issue, and we grant rehearing for the limited purposes of clarifying the applicable law.
NRS 90.460 makes it unlawful for a person to offer to sell or sell any security in this state unless the
security is registered or the security or transaction is exempt under [NRS chapter 90]. Exemptions from
registration for certain transactions are set forth at NRS 90.530. At issue in this case is the limited/small offering
exemption at NRS 90.530(11). This exemption may not be claimed with respect to a transaction involving the
offer to sell or sale of an unregistered security unless [n]o commission or other similar compensation is paid or
given, directly or indirectly, to a person, other than a broker-dealer licensed or not required to be licensed under
[NRS chapter 90], for soliciting a prospective purchaser in this state. NRS 90.530(11)(c).
In addressing the sufficiency of evidence to support appellants' convictions in our earlier opinion, we
concluded that the evidence adduced at trial proved only that appellants paid to Mr. McVickers
2
commissions
for the sales of unregistered securities alleged in four counts of the amended indictment. Fullerton, 116 Nev. at
437-40, 997 P.2d at 809-11. However, we further concluded that no evidence was adduced by the State to show
that commissions were paid in connection with the transactions alleged in the remaining seventeen counts. Id. at
439-40, 997 P.2d at 810-11. Thus, we reversed the convictions for insufficient evidence on those counts relative
to which no payment of commissions was proved by the State. Id. at 440-41, 997 P.2d at 810-11.
Our opinion did not address the applicable burdens of proof and production pursuant to NRS 90.690(2),
which states that [i]n a criminal proceeding, the burden of going forward with evidence of a claim of exemption
or exception from a definition is on the person claiming it. This provision derives from and is identical to
Section 608(b) of the Revised Uniform Securities Act of 1985, and should be interpreted consistently
therewith.
__________

1
The State has petitioned for leave to allow an interested organization, North American Securities
Administrators Association, Inc., to file an amicus brief in support of the State's rehearing petition. Cause
appearing, we grant the motion for leave to file the proposed amicus curiae brief. See NRAP 29. The clerk of
this court shall forthwith file the previously received brief.

2
Our opinion mistakenly identified Joel McVickers as the payee of the commissions in question; however,
the evidence at trial actually showed that the commissions were paid to Greg McVickers.
........................................
and should be interpreted consistently therewith.
3
The provision is intended to make clear that, [w]hile the
standard of proof that the prosecuting attorney is required to meet to obtain a conviction is establishing the
requisite elements of the criminal offense beyond a reasonable doubt,' a defendant claiming an exemption or
exception as a defense has the burden of offering evidence to establish that defense. Uniform Securities Act
(1985) 608 cmt. 2 (amended 1988), 7B U.L.A. 210 (Supp. 2000).
[Headnotes 1, 2]
Consistent with the Uniform Securities Act, in a prosecution for a violation of NRS 90.460, the State has the
burden of proving that: (1) the defendant offered or sold a security in Nevada; and (2) the security was not
registered. See State v. Kershner, 801 P.2d 68, 69-70 (Kan. Ct. App. 1990) (interpreting similar Kansas statute
patterned after the Uniform Securities Act); see generally 12A Joseph C. Long, Blue Sky Law 8.02[1] (1999)
(interpreting Uniform Securities Act). Pursuant to NRS 90.690(2), the State is not required to prove the lack of
an exemption until the defendant injects some competent evidence showing his entitlement to the exemption;
however, once the defendant produces such evidence, the State bears the burden of proving beyond a reasonable
doubt that the exemption does not apply. Cf. Kershner, 801 P.2d at 70 (upholding similar interpretation under
Kansas statutes); see generally 12A Long, Blue Sky Law 8.02[2][a]; 79A C.J.S. Securities Regulation 450 at
514-15 (1995).
[Headnote 3]
On rehearing, the State argues that appellants failed to present sufficient evidence showing nonpayment of
commissions to meet their burden pursuant to NRS 90.530(11)(c) and NRS 90.690(2).
4
Thus the State asserts
that it was not required to prove nonavailability of the exemption. We disagree.
__________

3
In 1987, the Nevada Legislature adopted the Uniform Securities Act of 1985 with certain revisions
inapplicable here. See 1987 Nev. Stat., ch. 794, 1-77, at 2149-91. The Uniform Securities Act of 1985 was
patterned after the Uniform Securities Act of 1956, which itself is patterned after the federal Securities Act of
1933. See Uniform Securities Act (1985) 101-807 (amended 1988), 7B U.L.A. 155 (Supp. 2000); Uniform
Securities Act (1956) 101-419 (amended 1958), 7B U.L.A. 509 (1985); Securities Act of 1933, ch. 38, 48
Stat. 74 (codified as amended at 15 U.S.C. 77a-77aa (1994)).
Pursuant to NRS 90.860, Nevada's Uniform Securities Act must be applied and construed to effectuate its
general purpose to make uniform the law with respect to the subject of this chapter among states enacting it and
to coordinate the interpretation and administration of this chapter with the related federal laws and regulations.

4
The State does not contend that appellants failed to meet their burden of production on the remaining
conditions listed at NRS 90.530(11)(a), (b) and (d). Indeed, the State conceded below that the only issue with
respect to the
........................................
Our review of the evidence shows that McVickers testified that he was paid commissions on six sales of First
Phoenix stock. However, McVickers' testimony only linked four of the commissions paid to specific counts
alleged in the amended indictmentcounts III, VI, VIII and IX. Fullerton's testimony showed that he paid the
commissions on the sales of securities identified by McVickers' testimony, not on the remaining sales within the
issue. We conclude that Fullerton's testimony was sufficient to meet appellants' burden of producing some
competent evidence that commissions were not paid on the seventeen sales not identified as a basis for
commissions received by McVickers. Therefore, consistent with NRS 90.690(2), the State was required to prove
beyond a reasonable doubt that appellants in fact paid commissions for the remaining seventeen sales alleged in
this case and thus were not entitled to claim the exemption as to those sales. This it failed to do. Accordingly, we
reaffirm our previous reversal of appellants' convictions on all counts save counts III, VI, VIII and IX.
The State additionally contends that rehearing is warranted because this court overlooked or misapprehended
the law regarding whether the payment of commissions on any sale of securities vitiates the availability of the
limited offering exemption at NRS 90.530(11) on other sales within the issue. We conclude that the State has
failed to demonstrate that rehearing is warranted on this issue. See NRAP 40(c)(1).
CONCLUSION
We grant rehearing for the limited purpose of clarifying our earlier opinion with respect to the applicable
burdens of production and proof pursuant to NRS 90.690(2). We conclude that appellants met their burden of
producing evidence indicating entitlement to an exemption pursuant to NRS 90.530(11)(c) on all counts save
counts III, VI, VIII and IX. We further conclude that the State failed to prove beyond a reasonable doubt that
commissions were paid on any sales alleged in the amended indictment other than those alleged in counts III,
VI, VIII and IX. Accordingly, we reaffirm our previous reversal of the convictions for the remaining seventeen
counts. We decline to grant rehearing on the State's remaining allegation. Consistent with our earlier opinion,
we remand this case to the district court for further proceedings.
__________
elements of the limited/small offering exemption was whether the respective defenses had produced sufficient
evidence showing that no commissions were paid in conjunction with the sales in question.
____________
116 Nev. 911, 911 (2000) Paschall v. State
RAYMOND PAUL PASCHALL, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 34288
September 19, 2000 8 P.3d 851
Appeal from a judgment of conviction, pursuant to a bench trial, of two counts of felony driving under the
influence. Second Judicial District Court, Washoe County; Jerome Polaha, Judge.
Defendant was convicted in the district court of two counts of felony driving under the influence (DUI).
Defendant appealed, challenging validity of prior misdemeanor convictions that were used to enhance current
charges from misdemeanors to felonies. The supreme court held that: (1) legislature had power to vest justice
courts with jurisdiction to suspend sentences of misdemeanor defendants, and (2) county's DUI ordinance did
not require approval of the board of directors of the state's Department of Transportation prior to its valid
enactment.
Affirmed.
Edwin T. Basl, Reno, for Appellant.
Joseph R. Plater, Deputy District Attorney, Washoe County, for Respondent.
1. Automobiles.
Even if justice courts exceeded their jurisdiction by suspending defendant's jail sentences for his two prior misdemeanor
convictions, this did not affect validity of defendant's prior misdemeanor convictions, and thus they could still be used to
enhance defendant's driving under the influence (DUI) charges to felonies. NRS 4.373, 484.3792(1)(c).
The failure to properly sentence does not render the trial and proceedings a nullity.
Statutes should be construed, if reasonably possible, so as to be in harmony with the constitution.
4. Statutes.
Where the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, there is no room for
construction, and the courts are not permitted to search for its meaning beyond the statute itself.
The legislature has no power to enlarge the jurisdiction of any court beyond that expressed in the constitution.
6. Constitutional Law; Sentencing and Punishment.
Legislature has power under state constitution to vest justice courts with jurisdiction to suspend the sentences of
misdemeanor defendants, and thus statute granting justice courts with such suspension power is constitutional. Const. art. 5,
14; art. 6, 8; NRS 4.373.
7. Courts.
Attorney general opinions are not binding authority on the supreme court.
8. Automobiles.
County's generally applicable driving under the influence (DUI) ordinance did not require approval of the board of directors of the
state's Department of Transportation prior to its valid enactment. NRS 484.779(3).
OPINION
Per Curiam:
SUMMARY
This case involves Raymond Paul Paschall's two convictions for driving under the influence (DUI),
which were enhanced from misdemeanors to felonies through the introduction of two prior misdemeanor
convictions. Prior to trial, Paschall raised numerous arguments in an effort to invalidate the prior
convictions, all of which the district court rejected. Now on appeal, Paschall argues that: (1) the earlier
justice courts did not have jurisdiction to suspend Paschall's sentences in the prior convictions; and (2) one
of the convictions was prosecuted under a county DUI ordinance that had not been approved by the board of
directors (the board) of the Nevada Department of Transportation (NDOT), as required by statute. We
conclude that the prior convictions were valid because: (1) justice courts properly have the power to suspend
the sentences of misdemeanor defendants under the current statutory scheme; and (2) the county DUI
ordinance under which Paschall was earlier convicted did not require approval of NDOT's board prior to
enactment.
STATEMENT OF FACTS
In 1997 and 1998, Paschall received two DUI citations. Because Paschall had two prior DUI convictions
within seven years, the 1997 and 1998 charges were enhanced to felonies under NRS 484.3792(1)(c),
1
and
Paschall was bound over for a joint bench trial at the district court.
__________

1
NRS 484.3792(1)(c) provides that:
[A person who drives under the influence for] a third or subsequent offense within 7 years, is
guilty of a category B felony and shall be punished by imprisonment in the state prison for a
minimum term of not less than 1 year and a maximum term of not more than 6 years, and shall be
further punished by a fine of not less than $2,000 nor more than $5,000.
bench trial at the district court. Paschall's prior convictions both resulted in suspended sentences imposed by the
justice courts. Paschall moved under several different theories to have the prior convictions invalidated in an
effort to avoid the effects of the enhancement statute. However, all of his motions were denied, and the case
proceeded to trial where Paschall was found guilty of both felony charges. This appeal followed.
DISCUSSION
Whether the justice courts exceeded their jurisdiction by suspending Paschall's sentences in his two prior
convictions
[Headnote 1]
Paschall asserts that the two prior convictions are invalid and cannot be used for enhancement purposes
because the justice courts presiding over his earlier proceedings unconstitutionally exceeded their jurisdiction
by suspending his jail sentences.
2
Specifically, Paschall asserts that the Nevada Constitution expressly limits
the authority to suspend sentences in criminal cases to district courts, thereby depriving the legislature of the
power to grant inferior courts, such as justice and municipal courts, authority to suspend. Consequently,
Paschall's argument squarely challenges the constitutionality of NRS 4.373, the Nevada statute granting such
suspension power to the justice courts.
3
[Headnote 2]
Preliminarily, we conclude that Paschall's prior convictions are valid regardless of whether the justice
courts exceeded their jurisdiction by suspending the sentences because [t]he failure to properly sentence does
not render the trial and proceedings a nullity. State v. District Court, 85 Nev. 485, 488, 457 P.2d 217, 219
(1969). However, because the constitutionality of NRS 4.373 is one of first impression, we shall discuss it below.
__________
2
Preliminarily, the State argues that review of Paschall's prior convictions should be limited in light of the
United States Supreme Court's decision in Custis v. United States, 511 U.S. 485 (1994). However, we decline
this opportunity to adopt such a strict rule limiting collateral attacks and note that we are not bound by the
Custis decision as it involved a federal sentencing law not at issue here and merely established the floor for
federal constitutional purposes as to when collateral attacks of prior convictions may be prohibited.

3
NRS 4.373 provides, in relevant part, that a justice of the peace may suspend, for not more than 1 year, the
sentence of a person convicted of a misdemeanor, and lists conditions that may be made a part of the
suspension, such as participation in a treatment program. We note that NRS 5.055 provides similar powers to
municipal judges and conclude that our analysis here would likely apply if the question of its constitutionality
was before us.
[Headnotes 3, 4]
In matters concerning a statute's constitutionality, we have held that statutes are presumed to be valid, and
the burden is on the challenger to make a clear showing of their unconstitutionality.' Sereika v. State, 114 Nev.
142, 145, 955 P.2d 175, 177 (1998) (quoting Childs v. State, 107 Nev. 584, 587, 816 P.2d 1079, 1081 (1991)).
Further, statutes should be construed, if reasonably possible, so as to be in harmony with the Constitution.'
Id. (quoting State of Nevada v. Glusman, 98 Nev. 412, 419, 651 P.2d 639, 644 (1982)). Finally, it is axiomatic
that [w]here the language of a statute is plain and unambiguous, and its meaning clear and unmistakable,
there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute
itself. ' Erwin v. State of Nevada, 111 Nev. 1535, 1538-39, 908 P.2d 1367, 1369 (1995) (quoting Charlie
Brown Constr. Co. v. Boulder City, 106 Nev. 497, 503, 797 P.2d 946, 949 (1990) (quoting State v. Jepsen, 46
Nev. 193, 196, 209 P. 501, 502 (1922))).
[Headnote 5]
With respect to the jurisdiction of justice courts, this court has recognized the well-established principle that
courts of justices of the peace are of special and limited jurisdiction. They can take nothing by
intendment or implication. They are creatures of the statute, and as they proceed they must move step by
step with its requirements, or their acts will be void.
Paul v. Armstrong, 1 Nev. 82, 99-100 (1865). However, the legislature's power to define a justice court's
jurisdiction is not absolute because the legislature has no power to enlarge the jurisdiction of any court beyond
that expressed in the Constitution. Moore v. Orr, 30 Nev. 458, 462, 98 P. 398, 399 (1908). Therefore, our
inquiry focuses on the Nevada Constitution and its provisions regarding justice courts.
[Headnote 6]
As amended in 1978, article 6, section 8 of the Nevada Constitution states:
The Legislature shall determine the number of Justices of the Peace . . . and shall fix by law their
qualifications, their terms of office and the limits of their civil and criminal jurisdiction, according to the
amount in controversy, the nature of the case, the penalty provided, or any combination of these.
Nev. Const. art. 6, 8. The plain language of this provision mandates that the legislature establish by law, and
according to the "nature of the case,"
nature of the case, the limits of [a justice court's] civil and criminal jurisdiction. Id. Accordingly, we
conclude that the legislature has the power to vest the justice courts with jurisdiction to suspend the sentences of
misdemeanor defendants.
[Headnote 7]
Paschall, however, directs us to the somewhat contrary language contained in article 5, section 14 of the
Nevada Constitution:
3. The legislature is authorized to pass laws conferring upon the district courts authority to suspend
the execution of sentences, fix the conditions for, and to grant probation . . . .
Nev. Const. art. 5, 14 (language ratified in 1950) (emphasis added). Because district courts alone are
mentioned, Paschall argues that by negative implication the legislature has no authority to vest justice courts
with the power to suspend sentences. See State of Nevada v. Hallock, 14 Nev. 202, 205-06 (1879) (The
affirmation of a distinct policy upon any specific point in a state constitution implies the negation of any power
in the legislature to establish a different policy.). However, this view ignores the broad grant of power in article
6, section 8 of the Nevada Constitution and our duty to interpret statutes in harmony with the Constitution
when reasonably possible. See Sereika, 114 Nev. at 145, 955 P.2d at 177. Accordingly, we conclude that that
language of article 5, section 14 of the Nevada Constitution does not control the matter.
4

Having concluded that the Nevada Constitution gives the legislature authority to grant justice courts the
power to suspend sentences, we hold that NRS 4.373, which grants such power to the justice courts, is
constitutional. Therefore, the suspended sentences in Paschall's prior convictions were properly entered by the
justice courts presiding over those charges.
Whether Paschall's first prior conviction is invalid because the charged violation was not approved as required
by NRS 484.779
[Headnote 8]
Paschall next argues that his first prior conviction is invalid because the DUI ordinance under which he
was charged, Washoe County Code 70.3S65, had not been "approved by the board of
directors of the department of transportation" as required by NRS 4S4.779.
__________

4
We note that in 1976, voters defeated a proposed constitutional amendment to article 5, section 14, that
would have included inferior courtsi.e., justice and municipal courtsto the list of courts the legislature
could authorize to suspend sentences. However, because we have concluded that article 5, section 14, does not
control the inquiry, this fact is only of historical import.
We also note that two opinions from the Attorney Generalfrom 1966 and 1978concluded that justice
courts did not have the authority to suspend sentences. However, we conclude that the opinions are
distinguishable because
County Code 70.3865, had not been approved by the board of directors of the department of transportation
as required by NRS 484.779.
In general, a local authority's ability to enact its own traffic ordinances is governed by NRS 484.777(2),
which provides the following broad grant of power:
Unless otherwise provided by specific statute, any local authority may enact by ordinance traffic
regulations which cover the same subject matter as the various sections of this chapter if the provisions of
the ordinance are not in conflict with this chapter.
NRS 484.777(2).
One such specific statute limiting NRS 484.777 is NRS 484.779. NRS 484.779(1)(a)-(e) includes a list of
specific regulations that may be enacted under its provisions, including: (1) regulation of processions or
assemblages; (2) defining one-way roads; (3) regulating intersections with highways; (4) designating truck and
bicycle routes; and (5) [a]dopting such other traffic regulations related to specific highways as are expressly
authorized by this chapter. NRS 484.779(1)(e). NRS 484.779(3) then states an important condition to the
enactment of the regulations it permits:
An ordinance enacted under this section is not effective with respect to:
(a) Highways constructed and maintained by the department of transportation under the authority
granted by chapter 408 of NRS;
. . . .
until the ordinance has been approved by the board of directors of the department of transportation.
NRS 484.779(3) (emphasis added). Thus, Paschall contends that the county DUI ordinance under which he was
earlier prosecuted falls within the purview of NRS 484.779, and thus required approval from the NDOT board
prior to enactment. However, the plain language of NRS 484.779 limits board approval to those ordinances
enacted under this sectionnamely, those ordinances listed in NRS 484.779(1)(a)-(e). These subsections deal
generally with the use and flow of traffic on state highways or the regulation of a specific highway. The
ordinance at issue here, however, is a generally applicable safety regulation unrelated to those enumerated in
NRS 484.779(1)(a)-(e). See Washoe County Code 70.3S65.
__________
there was no legislative grant of such power in the statutes in effect at the time the opinions were written.
Moreover, attorney general opinions are not binding authority on this court. See Goldman v. Bryan, 106 Nev.
30, 42, 787 P.2d 372, 380 (1990).
Code 70.3865. Accordingly, we conclude that the county DUI ordinance is not an ordinance enacted under
NRS 484.779, and thus board approval is not required.
5

Therefore, we conclude that Paschall's first prior conviction was valid and not entered upon an improperly
enacted county ordinance.
CONCLUSION
We first conclude that NRS 4.373, which authorizes justice courts to suspend sentences, is constitutional.
Next, we conclude that a local authority's generally applicable DUI ordinance does not require NDOT board
approval prior to its valid enactment. Therefore, the prior DUI convictions introduced against Paschall were
valid and properly considered by the district court for enhancement purposes.
6

Accordingly, we affirm the district court's judgment.
__________

5
We note that a 1983 Attorney General's opinion considered an issue nearly identical to the one here and
arrived at the same conclusion. See 83-12 Op. Att'y Gen. 43 (1983).

6
In addition to the issues discussed above, Paschall raises numerous other arguments on appeal, including:
(1) that the prior convictions are invalid for alleged Faretta violations; (2) that his first prior conviction shows a
jurisdictional violation on its face because the State of Nevada prosecuted the Washoe County DUI violation
rather than the County of Washoe; (3) that the waiver form for the second prior conviction is invalid because it
shows that Paschall did not waive three of his constitutional rights; (4) that the complaint used to evidence his
second prior conviction is invalid because it is a misdemeanor complaint that contains an impermissible felony
charge and was not in the form of a formal complaint; (5) that because the citation for his second prior
conviction does not include all the elements of the offense and does not reference the first prior conviction, the
subsequent conviction for second offense DUI is invalid because the State was allowed to proceed on an
uncharged theory; (6) that the misdemeanor judgments for his priors, which included a jail term and were
entered by a lay judge, violated United States Supreme Court precedent, and are thus void for enhancement
purposes; (7) that because his priors imposed an administrative assessment, which funds are in part controlled
directly by the courts, the judgment is void because the judge was no longer a neutral and detached magistrate;
(8) that his first felony complaint from 1997 is defective because it refers to a conviction for his second prior
conviction occurring on January 8, 1997, the day of his plea, rather than the later sentencing date; (9) that
blood alcohol evidence should have been suppressed regarding his October 6, 1997, charge because he was not
allowed to make a phone call within a three-hour time period; and (10) that because the arrests for the later DUIs
occurred in Empire on private streets, the State had to prove that Paschall was driving on the state highway
before Paschall could be convicted. Having reviewed all of Paschall's arguments, we conclude that they lack
merit.
____________
116 Nev. 918, 918 (2000) DeChant v. State
AMY RICA DeCHANT, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 33520
October 19, 2000 10 P.3d 108
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of first-degree murder with
the use of a deadly weapon and one count of robbery with the use of a deadly weapon. Eighth Judicial District
Court, Clark County; John S. McGroarty, Judge.
Defendant was convicted in the district court of first-degree murder and robbery, and she appealed. The
supreme court held that: (1) retired police detective was improperly allowed to testify as to his opinion regarding
credibility of story offered by defendant that victim, who was her husband, had been victim of an organized
crime hit; (2) trial court erred by failing to compel private investigator hired by victim's family to investigate
case to disclose his notes, which were not privileged; and (3) cumulative effect of errors deprived defendant of a
fair trial, and required reversal.
Daniel J. Albregts, Ltd., Las Vegas, for Appellant.
Chief Deputy District Attorney, and Marc P. DiGiacomo, Deputy District Attorney, Clark County, for
Respondent.
1. Criminal Law.
Reviewing court would treat former police detective who testified on behalf of prosecution as a lay witness, in determining
whether admission of his testimony that defendant's story that victim, who was her husband, was the victim of an organized crime hit
was not credible warranted reversal, even though testimony essentially consisted of specialized knowledge obtained through his
experience as a detective, where trial court allowed testimony into evidence as lay opinion.
2. Criminal Law.
In general, it is exclusively within the province of the trier of fact to weigh evidence and pass on the credibility of witnesses and
their testimony.
3. Criminal Law.
A lay witness's opinion testimony concerning the veracity of the statement of another is inadmissible.
4. Criminal Law.
Rule that a lay witness's opinion testimony concerning the veracity of the statement of another is inadmissible applies whether or
not statement whose veracity is being challenged was actually expressed through testimony of another
witness at trial.
ment whose veracity is being challenged was actually expressed through testimony of another witness at trial.
5. Criminal Law.
Retired police detective could not testify during murder prosecution as to his opinion regarding credibility of story offered by
defendant that victim, who was her husband, had been victim of an organized crime hit. State did not have detective testify regarding
his experience with organized crime murders, and their characteristics, and his testimony had ultimate effect of impermissibly
attacking veracity of defendant's statement, and the heart of her defense.
6. Criminal Law.
Errors by trial court in permitting retired police detective to give his opinion regarding credibility of story offered by murder
defendant that victim, who was her husband, had been victim of an organized crime hit, and allowing prosecutor to re-emphasize
detective's opinion during trial and in closing argument, could not be deemed harmless, given crucial nature of detective's testimony,
and required reversal.
7. Witnesses.
Statute governing private investigators under which it is unlawful for a licensed investigator to divulge to anyone, except as he
may be so required by law to do, any information acquired by him, except at the direction of the employer or client for whom the
information was obtained, afford no privilege to an investigator or employee summoned as a witness in court from testifying as to facts
concerning an issue under investigation, and give a district court discretion to compel disclosure of documents in possession of
investigator that are relevant to trial and not covered by any other privilege. NRS 648.200.
8. Criminal Law.
Notes prepared by licensed private investigator who had been hired by family of murder victim during initial days of his
investigation into murder were not privileged, and thus, trial court presiding over murder prosecution had discretion to compel
investigator to disclose notes to defendant. NRS 648.200.
9. Criminal Law.
If the cumulative effect of errors committed at trial denied defendant right to a fair trial, appellate court will reverse the conviction.
10. Criminal Law.
Relevant factors to consider in deciding whether trial error is harmless or prejudicial include whether the issue of innocence or
guilt is close, the quantity and character of the error, and the gravity of the crime charged.
11. Criminal Law.
Cumulative effect of trial court's errors in allowing retired police detective to testify during murder prosecution as to his opinion
regarding credibility of story offered by defendant that victim, who was her husband, had been victim of an organized crime hit,
allowing prosecutor to re-emphasize detective's opinion during closing, and refusing to compel disclosure of notes prepared by private
investigator who had been hired by victim's family, denied defendant a fair trial, and mandated reversal.
OPINION
Per Curiam:
SUMMARY
On the night of July 5, 1996, Bruce Charles Weinstein (Weinstein), an illegal bookmaker, disappeared
from his Las Vegas home. Suspicious of the circumstances surrounding Weinstein's disappearance, his
family hired a private investigator, Michael R. Wysocki (Wysocki), to determine what happened to
Weinstein. Wysocki's investigative efforts focused on Weinstein's live-in love interest, Amy Rica DeChant
(DeChant). After a week of investigation, Wysocki reported what he had learned to the police. The police
then began an official investigation and interviewed DeChant. In a videotaped statement to the police,
DeChant recounted that Weinstein was murdered by masked intruders who told her to clean up the evidence
and to remain silent. DeChant inferred that Weinstein was killed by individuals connected with organized
crime (mob) activities. Eventually, DeChant and one of her employees, Robert Wayne Jones (Jones),
were indicted for the murder and robbery of Weinstein. During trial, over DeChant's objections, the State
introduced testimony from a veteran police officer that DeChant's statements about Weinstein being the
victim of a mob hit were not credible. This testimony was emphasized by the State during closing arguments.
DeChant also attempted to subpoena Wysocki's investigative notes, but her request was denied by the district
court, which concluded that the notes were privileged under Nevada law.
We conclude that the officer's testimony and the State's reference to the testimony in the State's closing
argument impermissibly commented on the veracity of DeChant's statement. Moreover, the district court
erred in concluding that Wysocki's notes were privileged. Because of the effect of these errors, we reverse and
remand for a new trial.
FACTS
In the fall of 1995, DeChant, an operator of a successful carpet cleaning business, became romantically
involved with Weinstein, an illegal bookmaker working in Las Vegas. DeChant eventually lived with
Weinstein at his new home.
The following summer, the two planned a vacation for the week after the Fourth of July. On July 5, 1996,
two days before the trip was to begin, Weinstein disappeared from his home. Weinstein's neighbor, Yohan
Lowie {"Lowie"), testified that at 10:00 p.m. that evening, he heard three popping
sounds, which he thought were fireworks left over from the Fourth of July.
neighbor, Yohan Lowie (Lowie), testified that at 10:00 p.m. that evening, he heard three popping sounds,
which he thought were fireworks left over from the Fourth of July.
The next morning, Weinstein's friends and family became alarmed when Weinstein failed to follow his
normal practice of calling in to work. Silvia White, Weinstein's mother, went over to Weinstein's house in the
early afternoon. Inside, she noticed that an area of the carpet was wet, smelled strongly of vinegar, and was
surrounded by brown spots. When White spoke with DeChant, DeChant told her that Weinstein had left the
night before with instructions that if he was not back before the vacation began, she was to leave without him
and he would meet her later.
The next day, July 7, 1996, White and a family friend agreed to hire a private investigator, Wysocki, to help
determine what happened to Weinstein. In the initial days of Wysocki's investigation, he focused his efforts on
DeChant because several of Weinstein's acquaintances suspected DeChant. At trial, Wysocki testified that when
he first asked DeChant about the night of the disappearance, she maintained her story that Weinstein had told her
that he was going out and would meet her on vacation if he did not come back in time.
Then on Thursday, July 11, 1996, when DeChant spoke with Wysocki again, Wysocki testified that DeChant
told him that she was planning to leave the country and that she had done research about which countries would
not extradite her. However, on cross-examination, Wysocki was unsure of whether he or DeChant first brought
up the topic of extradition.
On Friday, July 12, 1996, DeChant had another conversation with Wysocki, and Wysocki testified that
DeChant told him a new version of the events surrounding Weinstein's disappearance. According to Wysocki,
DeChant said that she was at home the night of July 5th when four masked intruders came in, took Weinstein
upstairs, beat him up, shot him, and then took his body out of the house. The intruders then told DeChant, whom
they had put in a downstairs room during the shooting, to clean up the mess and that if anyone ever asked her
what happened, she should tell them that Weinstein had gone out but did not say where he was going. These
intruders also told DeChant that they were watching her and would kill her if they found out that she had told
anyone what really happened.
The next day, DeChant gave a taped interview to homicide detectives where she repeated her story about the
masked intruders. In this interview, DeChant also stated that she had received a call from the intruders several
days after the murder reminding DeChant that they were watching her.
DeChant that they were watching her. Because of Weinstein's illegal bookmaking activities, DeChant's statement
implied that Weinstein was killed by organized crime figures, i.e., the mob.
Homicide detectives now began an exhaustive search of Weinstein's Las Vegas home, DeChant's car,
Weinstein's car, and the truck DeChant used for the cleaning business. The police also investigated the
relationship between DeChant and her employee Jones, and the possible involvement of Jones in Weinstein's
disappearance. The investigation uncovered a blood trail from the master bedroom, down the stairs, and into the
foyer area. However, no murder weapon, shell casings, or bullet holes were ever found at the scene. Further, no
blood stains or carpet fibers were found in any of the vehicles. Finally, detectives searched a safety deposit box
that DeChant had opened at a Las Vegas hotel where they found $35,000.00 in sports book chips and a bag of
jewelry.
In August of 1996, Weinstein's body was found in a remote area outside of Las Vegas. A .38 caliber bullet
was found inside the body and determined to be the cause of death, but ballistic tests could not be performed
because of the condition of the bullet. Later, a .38 caliber gun was found in a desert area outside of Vegas that
was traced to Mathew Hunt (Hunt), a friend of Jones's son. Hunt testified that he had traded the gun to Jones's
son.
On September 12, 1997, DeChant and Jones were both indicted for conspiracy to commit robbery and/or
murder, murder with the use of a deadly weapon, robbery with the use of a deadly weapon, and accessory to
murder.
Prior to trial, a hearing was held concerning DeChant's subpoena duces tecum for Wysocki's notes and billing
records regarding his investigation. In that hearing, the State took no position. Instead Wysocki was represented
by independent counsel who argued that Wysocki was not permitted to divulge the information. Wysocki's
argument was based on NRS 648.200, which forbids private investigators from divulging information acquired,
except at the request of the client or as required by law. The district court concluded that the statute created a
privilege that Wysocki could invoke, and thus the district court did not have the discretion to order the
disclosure of Wysocki's raw notes.
At trial, Wysocki claimed that all the information he had in his notes was included in a ninety-eight-page
report that was prepared after a police interview. Further, Wysocki stated that if he had had anything to add to
the report, he would have just informed the police verbally without preparing any additional writings.
During trial, the State sought to introduce the testimony of Alfred Leavitt (Leavitt), a former Las Vegas
Metropolitan Police Department detective with thirty years of experience in investigating
homicides, including some involving organized crime.
Police Department detective with thirty years of experience in investigating homicides, including some involving
organized crime. The State had previously asked Leavitt to review DeChant's videotaped police statement, which
was shown at trial, and to form an opinion as to whether DeChant's statements regarding a mob hit were credible.
DeChant objected to Leavitt's testimony on the grounds that it impermissibly commented on the veracity of
DeChant's statement. At a hearing outside the presence of the jury, the State acknowledged that it was not
introducing Leavitt as an expert witness on the characteristics of organized crime murders. Instead, the State
indicated that it wanted to draw on Leavitt's personal experiences with organized crime murders to support
Leavitt's opinions about the credibility of DeChant's statements. The State argued that:
Based on that experience and that included some 30 years as a police officer and hundreds of such
investigations, he examined the statement given by Ms. DeChant to the police and pointed out several
particulars in which her version of what happened was not credible as involving a mob hit . . . .
The district court denied the objection and permitted Leavitt's testimony.
At trial, Leavitt testified that he had reviewed and evaluated DeChant's statement and found several
inconsistencies. First, Leavitt highlighted DeChant's claim that the mob committed the crime while DeChant
was at home and commented that when the mob killed somebody they did not leave witnesses. Leavitt
explained that if this were a mob hit, the mob would have waited for Weinstein to be alone or would have
killed DeChant as well. Further, after reiterating DeChant's claim that the mob contacted her later, Leavitt
testified that he had never experienced a case where the mob would call a witness to remind her that she was
being watched. Leavitt also testified that DeChant's claim that Weinstein's body was removed from the scene
was inconsistent with his experience because the mob would have left the body. Finally, Leavitt commented
generally that nothing about DeChant's statement fit with his experience.
In addition, although the district court instructed Leavitt not to give his personal opinions as to the veracity
of DeChant's statement, Leavitt commented that DeChant's story was a fairy tale and that he did not believe it
for one second. Leavitt further stated that he did not believe that portion of DeChant's statement claiming that
she received a phone call from the intruders.
The district court sustained DeChant's objection to these statements and ordered some of the testimony
stricken. The district court also instructed the jury to disregard Leavitt's opinions about
DeChant's veracity.
court also instructed the jury to disregard Leavitt's opinions about DeChant's veracity. However, during closing
argument, the prosecutor repeated Leavitt's description of DeChant's story as a fairy tale, and used Leavitt's
testimony as a basis for inferring that DeChant was a liar.
At the conclusion of the trial, DeChant was convicted and sentenced for first-degree murder with the use of a
deadly weapon and robbery with the use of a deadly weapon.
DISCUSSION
Leavitt's testimony and the prosecutor's comments regarding DeChant's veracity
DeChant first contends that the district court erred in allowing Leavitt to testify at trial because his
testimony impermissibly stated an opinion concerning DeChant's truthfulness and the State improperly used it
to infer DeChant's guilt.
1
We agree that this testimony and the prosecutor's comments during closing,
constituted an impermissible comment on the veracity of DeChant's statement.
[Headnote 1]
Initially, we note that there is some dispute with respect to whether Leavitt's testimony was expert or lay
opinion. The record reveals that the district court allowed Leavitt's testimony as lay opinion, despite the fact
that the testimony essentially consisted of specialized knowledge obtained through experience as a police
detective. Accordingly, we will treat Leavitt as a lay witness. See Johnson v. Egtedar, 112 Nev. 428, 436, 915
P.2d 271, 276 (1996) (The scope of a witness' testimony and whether a witness will be permitted to testify as an
expert witness are within the discretion of the trial court, and the trial court's ruling will not be disturbed unless
there is an abuse of discretion.).
[Headnotes 2-4]
In general, it is exclusively within the province of the trier of fact to weigh evidence and pass on the
credibility of witnesses and their testimony. Lay v. State, 110 Nev. 1189, 1192, 886 P.2d 448, 450 (1994).
Thus, a lay witness's opinion concerning the veracity of the statement of another is inadmissible. See Sterling v.
State, 108 Nev. 391, 397, 834 P.2d 400, 404 (1992) (Lay opinion about the veracity of particular statements by
another is inadmissible on that issue.")
__________

1
DeChant also contends that the district court erred in denying her motion to sever and that there was
insufficient evidence to support her convictions. Because we reverse this matter on other grounds, we need not
reach DeChant's contention respecting the motion to sever. We further conclude, however, that sufficient
evidence was presented to establish guilt beyond a reasonable doubt as determined by a rational trier of fact.
inadmissible on that issue.) (quoting People v. Melton, 750 P.2d 741, 758 (Cal. 1988)).
2

[Headnote 5]
In this case, the State did not question Leavitt solely about his experience with organized crime murders and
then have him testify, based upon that experience, that mob contract murders have particular characteristics. In
fact, the State conceded it was not proposing to qualify Leavitt as an expert for that purpose. Instead, the State
asked Leavitt to review DeChant's statement and to form an opinion as to whether or not Ms. DeChant's story of
a mob hit was credible.
3

Leavitt's testimony about his experiences with organized crime continuously referenced DeChant's contrary
claims and had the ultimate effect of impermissibly attacking the veracity of DeChant's statement and the heart
of her defense. Moreover, Leavitt made several comments directly stating his opinion of DeChant's statement.
For instance, Leavitt commented that DeChant's claim that the mob committed the murder with DeChant at home
was a fairy tale and that he did not believe it for a second. Further, when asked about DeChant's claim that she
was later contacted by a mob individual warning her to keep silent, Leavitt stated, I don't believe that either.
Finally, the prosecutor adopted Leavitt's language during closing argument and concluded that DeChant's
story was a fairy tale that was made up in her mind. Additionally, there were several other instances during the
State's closing argument when the prosecutor argued that DeChant's story was a sham based upon the Leavitt
testimony. The prosecution's combined comments served to highlight and re-emphasize Leavitt's opinion of
DeChant's credibility, undermining the curative effect of the limiting instruction.
__________

2
Initially, the State argues that this case law does not apply because it involves only opinions regarding
another witness's testimony. Thus, the State claims that because DeChant never took the stand and Leavitt
offered an opinion only of her out-of-court statement, which was introduced at trial, the case law should not
apply. However, we conclude that this testimony versus statement distinction is, in this case, a distinction
without a difference. As noted above, the underlying purpose for the inadmissibility of opinion evidence
regarding the truthfulness of another's statement is to prevent a witness from invading the jury's function of being
the sole authority in weighing the evidence and determining the ultimate facts in a case. See Townsend v. State,
103 Nev. 113, 117, 734 P.2d 705, 709 (1987) (it is the prerogative of the jury to make unassisted factual
determinations). This purpose is equally important where the offending witness comments on the credibility of a
defendant's statement, which embodies the defendant's version of facts. Therefore, we conclude the State's
argument lacks merit.

3
We note that even if Leavitt were qualified as an expert, our conclusion would not change as similar
testimonial boundaries exist for experts. See Lickey v. State, 108 Nev. 191, 196, 827 P.2d 824, 827 (1992) (An
expert may not comment on the veracity of a witness.) (citing Townsend v. State, 103 Nev. 113, 118-19, 734
P.2d 705, 708-09 (1987)).
DeChant's credibility, undermining the curative effect of the limiting instruction.
[Headnote 6]
We conclude that the district court erred in permitting Leavitt's testimony. Moreover, given the crucial nature
of Leavitt's testimony and the prosecutor's paraphrasing of Leavitt's opinion during closing, we cannot say that
the error was harmless.
The district court's quashing of DeChant's subpoena duces tecum requesting Wysocki's notes
[Headnotes 7, 8]
DeChant further contends that the district court erred when it held that it did not have discretion to compel
disclosure of Wysocki's notes that he prepared during the initial days of his investigation. Specifically, DeChant
argues that the district court misconstrued NRS 648.200, which the district court concluded created a privilege
in private investigators that prevented it from ordering Wysocki to disclose his notes.
In relevant part, NRS 648.200 states:
It is unlawful for any licensee or any employee, security guard, officer or member of any licensee:
1. To divulge to anyone, except as he may be so required by law to do, any information acquired by
him except at the direction of the employer or client for whom the information was obtained.
(Emphasis added.)
Although we have not previously interpreted the scope of NRS 648.200, two other states have dealt with
identical statutes. See Attorney General v. Pelletier, 134 N.E. 407, 418 (Mass. 1922); People v. Roach, 109 N.E.
618, 624 (N.Y. 1915). Both Pelletier and Roach conclude that such a statute affords no privilege to an
investigator or employee summoned as a witness in court to give testimony as to facts concerning an issue under
investigation. Further, the Massachusetts court noted that [t]he statute was not intended to hamper the
administration of justice but simply to provide for the licensing and regulation of private detectives and to
protect them . . . from faithless employees. Pelletier, 134 N.E. at 418-19.
We conclude that the except as he may be so required by law to do language of the statute and the
compelling reasoning in Pelletier and Roach indicate that a district court does have discretion to compel
disclosure of documents in possession of a private investigator that are relevant to trial and not covered by any
other privilege.
other privilege. Accordingly, the district court erred in quashing DeChant's subpoena duces tecum based upon
the provisions of NRS 648.200.
Whether the cumulative error was prejudicial
Although we have concluded that the admission of Leavitt's testimony alone would warrant reversal, we
have also analyzed the cumulative effect of the errors at trial.
[Headnotes 9, 10]
We have stated that if the cumulative effect of errors committed at trial denies the appellant his right to a
fair trial, this court will reverse the conviction. See Big Pond v. State, 101 Nev. 1, 3, 692 P.2d 1288, 1289
(1985). Relevant factors to consider in deciding whether error is harmless or prejudicial include whether the
issue of innocence or guilt is close, the quantity and character of the error, and the gravity of the crime charged.
Id.
[Headnote 11]
In this case, we first note that the evidence was largely circumstantial, with inferences of guilt being drawn
principally from DeChant's actions after Weinstein's murder. We also note the gravity of the first-degree murder
and robbery charges upon which DeChant was convicted.
More importantly, Leavitt's testimony was extremely prejudicial as it directly undermined DeChant's version
of facts and was stated by a witness whom the State portrayed as a highly experienced person with specialized
knowledge. Finally, Leavitt's expertise, and his opinions about DeChant's credibility, were impermissibly
referenced by the prosecution during closing argument.
Further, we conclude that the district court's error in not compelling disclosure of Wysocki's investigative
notes was also of a prejudicial nature as Wysocki was a critical witness for the State regarding DeChant's
conduct during the first week of Weinstein's disappearance. Thus, his notes were relevant to an effective
cross-examination by DeChant. Although Wysocki testified that all his notes were reduced to the
ninety-eight-page police report, he also testified to his lucrative financial arrangement and increasingly close
relationship with the Weinsteins. DeChant cannot be required to rely upon Wysocki's statements in this regard.
We conclude that even if the admission of Leavitt's testimony could be considered harmless error, the
cumulative effect of the errors at trial denied DeChant her right to a fair trial and mandates reversal.
CONCLUSION
We first conclude that Leavitt's testimony regarding the veracity of DeChant's story and the State's
comments during closing argument were reversible error. Next, we conclude that the district court erred in its
interpretation of NRS 648.200, which prevented DeChant from obtaining Wysocki's investigative notes.
Although the district court's admission of Leavitt's testimony was reversible error, we also conclude that the
cumulative effect of the errors at trial was prejudicial. Therefore, we reverse and remand the case to the district
court for a new trial.
4

____________
116 Nev. 928, 928 (2000) Parsons v. State
DAVID EARL PARSONS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 29680
October 23, 2000 10 P.3d 836
Petition for en banc reconsideration of panel opinion reversing judgment of conviction. Fifth Judicial District
Court, Nye County; John P. Davis, Judge.
Defendant was convicted in the district court of felony driving under influence (DUI), and he appealed. A
panel of the supreme court reversed, 115 Nev. 91, 978 P.2d 963 (1999). Granting en banc reconsideration, the
supreme court held that: (1) constitutional validity of prior DUI conviction is not part of probable cause
determination at preliminary hearing on felony DUI charge, overruling Parsons v. District Court, 110 Nev. 1239,
885 P.2d 1316 (1994); but (2) district court order allowing State to file information by affidavit, after justice's
court declined to find probable cause on erroneous ground that State had not shown constitutional validity of
prior convictions, was improper.
Petition granted; judgment reversed.
Harry R. Gensler, Public Defender, and Harold Kuehn, Deputy Public Defender, Nye County, for
Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Robert S. Beckett, District Attorney, and John
J. Friel, Jr., Deputy District Attorney, Nye County, for Respondent.
__________

4
Nothing in this opinion is intended to prohibit the State from attempting to introduce testimony from
an individual with expertise in the patterns, if any, surrounding organized crime murders. Assuming such
testimony was properly admitted, the State would also be free to argue that DeChant's version of the
events does not follow the pattern of a mob contract murder.
1. Criminal Law.
Constitutional validity of a prior conviction that is being used for enhancement purposes is not at issue at the preliminary
examination stage of a criminal proceeding. NRS 171.206.
2. Criminal Law.
Preliminary examination is not a trial, and the issue of the defendant's guilt or innocence is not a matter before the court. NRS
171.206.
3. Criminal Law.
Constitutional validity of a prior driving under influence (DUI) conviction is not part of probable cause determination at
preliminary hearing on charge of felony DUI arising from third or subsequent DUI offense; rather, that issue is for trial court to
determine at, or anytime before, sentencing; overruling Parsons v. District Court, 110 Nev. 1239, 885 P.2d 1316 (1994). NRS 171.206,
484.3792(1)(c), (2), (8).
4. Criminal Law.
State meets requirement, at preliminary hearing on felony driving under the influence (DUI), of showing facts concerning prior
offenses by presenting evidence that defendant has convictions for two or more DUI offenses within seven years of charged offense.
NRS 171.206, 484.3792(1)(c), (2), (8).
5. Criminal Law.
Defendants wishing to challenge constitutional validity of prior convictions that are alleged for enhancement purposes are
encouraged to do so through the filing of pretrial motions.
In order to use a prior misdemeanor conviction for enhancement purposes, State must affirmatively show either that counsel was
present or that the right to counsel was validly waived, and that the spirit of constitutional principles was respected in the prior
misdemeanor proceedings.
In order to use a prior felony conviction for enhancement purposes, State bears the initial burden of producing prima facie
evidence of existence of prior conviction. If record of prior conviction, on its face, raises presumption of constitutional infirmity, then
State must present evidence to prove by a preponderance that prior conviction is constitutionally valid, but if record raises no such
presumption on its face, then conviction is afforded a presumption of regularity and defendant must overcome that presumption by
presenting evidence to prove by a preponderance that prior conviction is constitutionally infirm.
8. Jury.
A defendant facing a charge of felony driving under influence (DUI) based on a third or subsequent DUI offense is entitled to a
jury trial in district court. NRS 484.3792(1)(c).
9. Automobiles.
District court order allowing State to file an information by affidavit on felony driving under the influence (DUI) charge, after
justice's court found probable cause lacking on erroneous ground that State had failed to show constitutional validity of prior
convictions, was improper. Justice's court's reason for discharging defendant was based on language from prior decision of state
supreme court and was therefore not egregious error so as to warrant the filing of information by affidavit. NRS 171.206,
173.035(2), 484.3792(1)(c).
Statute governing the filing of an information by affidavit is a safeguard against egregious error by a magistrate in determining
probable cause, not a device to be used by a prosecutor to satisfy, through affidavit, deficiencies in evidence at a preliminary
examination. NRS 173.035(2).
OPINION
Per Curiam:
Appellant David Earl Parsons was convicted, pursuant to a jury verdict, of felony driving under the
influence in violation of NRS 484.379 and NRS 484.3792(1)(c). On appeal, a panel of this court reversed the
conviction, concluding that the district court erred by permitting the State to file an information by affidavit
pursuant to NRS 173.035(2). See Parsons v. State, 115 Nev. 91, 978 P.2d 963 (1999). The State filed a
petition for rehearing, which was denied by the three-justice panel. The State then filed a petition for en
banc reconsideration.
[Headnote 1]
The primary concern raised in the petition is whether the constitutional validity of the prior DUI
convictions used to enhance the instant offense to a felony was properly the subject of the preliminary
examination in justice's court. We conclude that this is a substantial public policy issue and, therefore, en
banc reconsideration is warranted. See NRAP 40A(a). We further conclude that the constitutional
validity of a prior conviction that is being used for enhancement purposes is not at issue at the
preliminary examination stage of a criminal proceeding. However, we conclude that the three-justice
panel was correct to reverse the conviction in this case because, under the particular circumstances of this
case, the district court erred by permitting the State to file an information by affidavit. We therefore
grant reconsideration, but reverse the judgment of conviction.
PROCEDURAL HISTORY AND FACTS
This case has a rather long and tortured procedural history that begins in December 1991, when the State
charged Parsons by criminal complaint with one count of felony driving under the influence (DUI) in
violation of NRS 484.379 and NRS 484.3792(1)(c). The State alleged that Parsons had two prior DUI
offenses within the preceding 7 years: (1) an arrest on November 21, 19S7, and conviction on April
15, 19SS, in Flagstaff, Arizona;
21, 1987, and conviction on April 15, 1988, in Flagstaff, Arizona; and (2) an arrest on September 9, 1990, and
conviction on December 13, 1990, in Beatty, Nevada.
During the preliminary examination in justice's court, Parsons challenged the constitutional validity of the
Beatty conviction.
1
Parsons moved to have the felony offense stricken down to a second offense DUI on the
ground that the complaint charging him with a second-offense DUI in Beatty had been improper because it
incorrectly stated the location of his first DUI offense. Parsons therefore requested that the justice's court permit
him to enter a plea to a second-offense DUI and receive his sentence.
The justice's court, having personal knowledge of the Beatty proceedings, opined that if Parsons had had
effective counsel at the time of his hearing on the Beatty DUI the problem with the complaint would have been
noted and the charge could have been dismissed or reduced to a first-offense DUI.
2
The justice's court also
noted that the complaint in the instant case listed the prior offenses correctly. Nonetheless, the justice's court
went on to strike the complaint and allow Parsons to enter a guilty plea to a second-offense misdemeanor DUI
charge. The justice's court sentenced Parsons to 30 days in jail, to be served intermittently, and ordered Parsons
to pay an $800.00 fine. Parsons subsequently fled the jurisdiction without serving the sentence or paying the
fine.
After unsuccessfully attempting to appeal the judgment to the district court, the State filed a petition for a
writ of certiorari in the district court. The district court granted the petition, issuing an order nullifying Parsons'
conviction and rescheduling the preliminary examination in justice's court.
Parsons filed a petition for a writ of mandamus or prohibition in this court. Parsons asked this court to issue a
writ directing the district court to void its order and vacate the rescheduled preliminary examination. This court
denied Parsons' petition, concluding that the district court correctly determined that the justice's court exceeded
its jurisdiction by amending the complaint and accepting the guilty plea.
__________

1
Parsons first raised this issue just before the preliminary examination. At that time, Parsons argued that the
Beatty conviction should be suppressed. The parties conferred off-the-record with the justice of the peace and
then commenced the preliminary examination.

2
We note that the justice's court may have been wrong to suggest that the Beatty complaint would have been
dismissed or reduced to a first-offense DUI based on the error in describing the location of the prior offense. See
Dressler v. State, 107 Nev. 686, 689, 819 P.2d 1288, 1290 (1991) (holding that error in description of prior
conviction does not preclude use of prior conviction for enhancement purposes unless defendant can show that
omission or inaccuracy in describing prior conviction prejudiced him).
accepting the guilty plea. Parsons v. District Court, 110 Nev. 1239, 885 P.2d 1316 (1994) (Parsons I).
The justice's court conducted a preliminary examination on August 21, 1995. The State offered the testimony
of the law enforcement officer who arrested Parsons. At the conclusion of the testimony, Parsons again
challenged the constitutional validity of the Beatty conviction. This time Parsons argued that because the Beatty
complaint did not allege that Parsons had been driving on a highway or premises to which the public has
accessan element of a DUI offense, it was unclear whether he had had a sufficient understanding of the law
and the elements of the offense to have entered a knowing and voluntary guilty plea. Parsons further argued that
the documents offered by the State were ambiguous as to whether Parsons had waived his right to an attorney or
had been represented by counsel. After hearing argument from the State, the justice's court concluded that the
Beatty complaint was deficient as it did not include an element of the offense and that it was not clear whether
Parsons had counsel in the Beatty proceedings. The justice's court therefore declined to bind Parsons over for
trial in the district court.
The State subsequently filed a motion to file an information by affidavit in the district court pursuant to NRS
173.035(2).
3
The State relied in large part on the evidence presented to the justice's court; however, the State
also provided an affidavit from Teresa Stucker, the Beatty Justice Court Clerk. In her affidavit, Stucker
explained that Parsons had waived counsel for the arraignment, but informed the Beatty Justice Court that he
would be represented at further proceedings by retained counsel. The district court granted the State's motion
and permitted the State to file the information by affidavit, concluding that the justice's court had committed
egregious error in discharging the criminal complaint.
The district court arraigned Parsons on the information on November 28, 1995. After the district court
denied various pretrial motions, a jury trial commenced on March 4, 1996. The jury found Parsons guilty of
driving under the influence. At sentencing, the district court found the prior convictions to be sufficient and
constitutionally valid for enhancement purposes. The court sentenced Parsons to one year in prison and a
$2,000.00 fine.
__________

3
NRS 173.035(2) provides, in relevant part:
If, however, upon the preliminary examination the accused has been discharged . . . the district attorney
may, upon affidavit of any person who has knowledge of the commission of an offense, and who is a
competent witness to testify in the case, setting forth the offense and the name of the person or persons
charged with the commission thereof, upon being furnished with the names of the witnesses for the
prosecution, by leave of the court first had, file an information, and process must forthwith be issued
thereon.
DISCUSSION
In resolving this petition for en banc reconsideration, we address whether the justice's court properly
considered the constitutional validity of the prior offenses in deciding whether there was probable cause to bind
Parsons over for trial in district court. We take this opportunity to clarify the role of the justices' courts with
respect to a felony charge of driving under the influence in violation of NRS 484.379 and NRS 484.3792(1)(c)
and the related issue of what the State is required to present at a preliminary examination on such a charge.
[Headnote 2]
The justices' courts are courts of limited jurisdiction and have only the authority granted by statute. See
NRS 4.370. The criminal jurisdiction of the justices' courts is limited to misdemeanors unless otherwise
provided by specific statute. NRS 4.370(3). Thus, the justices' courts do not have jurisdiction over gross
misdemeanor or felony offenses. Because gross misdemeanor and felony offenses are not triable in justice's
court, a person charged with such offenses cannot be called upon to plead in justice's court. See NRS 171.196.
However, the justice's court is required to conduct a preliminary examination in such cases. The justice's court's
role at a preliminary examination is to make an evidentiary evaluation of whether there is probable cause to
believe that an offense has been committed and that the defendant has committed it. See NRS 171.206. The
preliminary examination is not a trial and the issue of the defendant's guilt or innocence is not a matter before the
court. State of Nevada v. Justice Court, 112 Nev. 803, 806, 919 P.2d 401, 402 (1996). At the conclusion of the
preliminary examination, the justice's court must either bind the defendant over to district court or discharge the
defendant.
4
See NRS 171.206.
[Headnote 3]
A person who violates the provisions of NRS 484.379 is guilty of a category B felony where the violation is
[f]or a third or subsequent offense within 7 years. NRS 484.3792(1)(c). As such, a charge of felony driving
under the influence in violation of NRS 484.379 and NRS 484.3792(1)(c) may not be tried in justice's court. The
justice's court's role is solely to conduct a preliminary hearing and determine whether there is probable cause to
find that an offense has been committed and that the defendant has committed it. In Parsons I, we stated in
dictum:
__________

4
Of course, the accused may waive the preliminary examination, at which point the justice's court's
involvement is concluded unless the waiver is conditional and the case is subsequently remanded by the district
court for a preliminary examination. See NRS 171.196(1); NRS 171.208.
It was within the discretion of the justice court to consider the constitutional sufficiency of the priors only
in the context of making an evidentiary determination of whether or not probable cause existed to bind
Parsons over on the felony charge. When the justice court determined that a prior conviction was infirm
on constitutional grounds, and that the felony charge accordingly could not stand, the only order that the
justice court was jurisdictionally empowered to enter was a dismissal of the felony charge.
110 Nev. at 1244, 885 P.2d at 1320. Upon further review and consideration, we have determined that this dicta
in Parsons I is unsound to the extent that it suggests that the constitutional validity of the prior convictions is
part of the probable cause determination.
We first conclude that the constitutional validity of a prior DUI conviction need not be part of the probable
cause determination because the prior convictions are not elements of a charge of driving under the influence. In
Koenig v. State, 99 Nev. 780, 672 P.2d 37 (1983), we held that a prior version of the DUI statute merely
provided for enhancement of penalty for subsequent convictions of the same or a similar offense and did not set
forth a separate felony offense specifying prior convictions as separate elements. The DUI statutes were
amended in 1983, with the offense and sentencing provisions being separated into different statutesNRS
484.379 and NRS 484.3792. See 1983 Nev. Stat., ch. 426, 8, 10, at 1068-72. Although this amendment was
not at issue in Koenig, we observed that it is specific in its provisions that prior convictions are to be used for
enhancement of penalty and supported our conclusion that even under the preamendment version, the
legislature intended the prior convictions to be used for enhancement and not as elements of the offense. Id. at
784 n.3, 672 P.2d at 40 n.3; see also NRS 484.3792(2) (providing that facts concerning prior convictions must
not be read to the jury or proved at trial but must be proved at the time of sentencing). Thus, the prior
convictions are not themselves elements of a felony charge of driving under the influence in violation of NRS
484.379. As such, an evidentiary evaluation of the prior convictions is not necessary to determine whether the
offense has been committed for purposes of a probable cause determination.
5

However, the legislature has provided that where the principal offense is alleged to be a felony, the facts
concerning a prior offense must be shown at the preliminary examination.
__________

5
We note that the United States Supreme Court has recently reiterated that where a sentence enhancement is
based on the fact of a prior conviction, that fact need not be submitted to a jury. See Apprendi v. New Jersey,
530 U.S. 466 (2000).
offense must be shown at the preliminary examination. Specifically, NRS 484.3792(2) provides:
The facts concerning a prior offense must be alleged in the complaint, indictment or information, must
not be read to the jury or proved at trial but must be proved at the time of sentencing and, if the principal
offense is alleged to be a felony, must also be shown at the preliminary examination or presented to the
grand jury.
We must then determine what facts concerning a prior offense must be shown at the preliminary examination.
The statute provides that the facts concerning a prior offense must be alleged in the charging document and
shown at the preliminary examination. We previously have dealt with the requirement as to the facts that must be
alleged in the charging document. In that context, we have indicated that the purpose of subsection (2) is to put
the defendant in a DUI case on notice of the possible penalties faced and provide the defendant with enough
information to challenge the validity of alleged prior convictions. See Dressler v. State, 107 Nev. 686, 689, 819
P.2d 1288, 1289-90 (1991). We have indicated that the facts concerning the prior convictions that must be
alleged in the charging document include the dates of the prior offenses and convictions and the locations where
the prior offenses occurred or the courts that entered the prior convictions. See Phipps v. State, 111 Nev. 1276,
903 P.2d 820 (1995); Dressler, 107 Nev. at 689-90, 819 P.2d at 1289-90. These facts must also be shown at the
preliminary examination because they permit the justice's court to determine whether there is probable cause to
believe that the defendant has two or more prior offenses within 7 years for the same or similar conduct. See
NRS 484.3792(1)(c) & (8). These facts are sufficient to find probable cause to believe the defendant has
committed a felony.
The particular question implicated in this case, and mentioned in dicta in Parsons I, is whether the
constitutional validity of the prior convictions for enhancement purposes is properly the subject of a preliminary
examination in a felony DUI case. We conclude that it is not.
[Headnotes 4, 5]
The language of NRS 484.3792(2) does not require that the constitutional validity of the prior convictions be
established at the preliminary examination. The statute provides only that the facts concerning a prior offense
must be shown at the preliminary examination. It is clear from the way the statute is constructed that the same
facts must be alleged in the charging document. We have never required that facts establishing the constitutional
validity of a prior offense be alleged in the charging document.
a prior offense be alleged in the charging document. While the requirement that the facts concerning the prior
offense be alleged in the charging document appears to be addressed to concerns of fair notice regarding the
penalty faced by the defendant, the requirement that the same facts be shown at the preliminary examination
appears to be addressed to concerns that the State be able to substantiate the existence of the prior offenses
before being permitted to proceed on a felony charge. We conclude that this concern is adequately met where the
State presents evidence that the defendant has convictions for two or more offenses, as defined by NRS
484.3792(8), within 7 years of the charged offense. The constitutional validity of prior convictions being offered
for enhancement purposes, a requirement that grows out of decisional law and not the statute, is for the trial
court to determine at, or anytime before, sentencing.
6
See Ronning v. State, 116 Nev. 32, 992 P.2d 260 (2000).
We therefore overrule Parsons I to the extent that it reaches the contrary conclusion.
We further conclude that this procedure avoids the inherent difficulties in resolving the issue of the
constitutional validity of the prior convictions at the probable cause stage, but still protects the rights of the
accused. Our first practical concern is one of time. The preliminary examination generally must be conducted
within 15 days. See NRS 171.196(2). Where the prior convictions are from outside the State of Nevada, it may
be difficult for the State to obtain the records necessary to establish the constitutional validity of the prior
convictions within this time period. We recognize that the 15-day period may be extended based upon a showing
of good cause, NRS 171.196(2); however, we conclude that the constitutional validity of the prior DUI
convictions is best dealt with at or before sentencing rather than delaying the preliminary examination and
possibly extending the accused's pretrial confinement unnecessarily.
[Headnotes 6, 7]
Our second practical concern is with the nature of the preliminary examination. The preliminary examination
is not intended to be a mini-trial. See State of Nevada v. Justice Court, 112 Nev. 803, 806, 919 P.2d 401, 402
(1996). Given that the constitutional validity of a prior conviction is subject to a different burden of proof than
the typical burden at a preliminary examination and that the burden shifts depending on the nature of the prior
conviction, we conclude that making this an issue at the preliminary examination stage of
the proceedings on a felony DUI charge would unduly confuse and complicate the
proceedings in the justice's court.
__________

6
We note that the district court's pretrial resolution of challenges to the constitutional validity of the alleged
prior convictions greatly enhances judicial economy and the efficiency of the proceedings. Such a procedure
eliminates the necessity and expense of felony jury trials where the prior convictions are constitutionally infirm
and cannot be used for enhancement purposes. Therefore, we expressly endorse and encourage the filing of
pretrial motions challenging the constitutional validity of the prior convictions.
viction,
7
we conclude that making this an issue at the preliminary examination stage of the proceedings on a
felony DUI charge would unduly confuse and complicate the proceedings in the justice's court.
8

[Headnote 8]
Finally, leaving the issue of the constitutional validity of the prior DUI convictions to be resolved by the
district court does not deprive an accused of any rights. In fact, because the accused is facing a felony charge, he
will be entitled to a jury trial in district court. See Blanton v. North Las Vegas Mun. Ct., 103 Nev. 623, 748 P.2d
494 (1987), aff'd, 489 U.S. 538 (1989). The facts concerning the prior convictions may not be considered by the
jury in determining the accused's guilt or innocence. See NRS 484.3792(2). Thus, an accused is not prejudiced
by allowing the State to proceed on a felony DUI charge without a determination at the preliminary examination
that the prior convictions are constitutionally valid.
[Headnotes 9, 10]
Although we conclude that the constitutional validity of the prior convictions should not have been addressed
at the preliminary examination, we nonetheless conclude that Parsons' conviction must be reversed. In particular,
we conclude that under the unique circumstances of this case, the district court erred in permitting the State to
file an information by affidavit following Parsons' discharge upon preliminary examination. NRS 173.035{2)
is "'a safeguard against egregious error by a magistrate in determining probable cause,
not a device to be used by a prosecutor to satisfy deficiencies in evidence at a preliminary
examination, through affidavit.'"
__________

7
The use of prior convictions for enhancement purposes is governed by different standards depending on
whether the prior conviction is for a misdemeanor or a felony. In order to use a prior misdemeanor conviction
for enhancement purposes, the State must affirmatively show either that counsel was present or that the right to
counsel was validly waived, and that the spirit of constitutional principles was respected in the prior
misdemeanor proceedings. Dressler v. State, 107 Nev. 686, 697, 819 P.2d 1288, 1295 (1991). In order to use a
prior felony conviction for enhancement purposes, the State bears the initial burden of production, which is met
by presenting prima facie evidence of the existence of the prior conviction. Id. If the record of the prior
conviction, on its face, raises a presumption of constitutional infirmity, then the State must present evidence to
prove by a preponderance that the prior conviction is constitutionally valid. Id. at 697-98, 819 P.2d at 1295-96.
If the record does not, on its face, raise a presumption of constitutional infirmity, then the conviction is afforded
a presumption of regularity and the defendant must overcome that presumption by presenting evidence to prove
by a preponderance that the prior conviction is constitutionally infirm. Id. at 698, 819 P.2d at 1296.

8
We do not mean to suggest that the justices' courts are not equipped to resolve this issue. These judges must
resolve the constitutional validity of prior DUI convictions in dealing with misdemeanor DUI charges under
NRS 484.3792(1)(b). Our concern, however, is that this issue unduly complicates the preliminary examination,
which is otherwise meant to be a quick and simple determination of probable cause.
173.035(2) is a safeguard against egregious error by a magistrate in determining probable cause, not a device
to be used by a prosecutor to satisfy deficiencies in evidence at a preliminary examination, through affidavit.'
State of Nevada v. District Court, 114 Nev. 739, 741-42, 964 P.2d 48, 49 (1998) (quoting Cranford v. Smart, 92
Nev. 89, 91, 545 P.2d 1162, 1163 (1976)). Here, the State relied on evidence that was not provided to the
justice's court to establish the constitutional validity of the Beatty conviction. The State cannot use an
information by affidavit in this manner. See id. Given the prior proceedings in this case and our decision in
Parsons I, the State had ample time and opportunity to obtain the necessary documentation to demonstrate the
constitutional validity of the prior convictions and should have been prepared to do so at the preliminary
examination. Additionally, considering this court's statements in Parsons I, which essentially instructed the
justice's court that if it believed the prior offenses were not constitutionally valid it could discharge Parsons, it
cannot be said that the justice's court committed egregious error. Accordingly, we conclude that the district court
erred in permitting the State to file an information by affidavit pursuant to NRS 173.035(2).
9
We therefore
reverse Parsons' conviction.
CONCLUSION
We conclude that the State is not required to establish the constitutional validity of a prior DUI conviction
for enhancement purposes at the preliminary examination stage of proceedings on a felony DUI charge.
Nonetheless, we conclude that Parsons' conviction must be reversed because, in discharging Parsons on the
felony DUI charge, the justice's court was following language in a prior decision of this court in this case and,
therefore, the district court erred in concluding that the justice's court had committed egregious error and in
permitting the State to file an information by affidavit.
__________

9
We also note that the State relied, in part, on an affidavit of the prosecuting attorney in support of its
motion to file an information by affidavit. We have previously stated that the affidavit of a prosecutor is not
sufficient to satisfy the statutory requirement of an affidavit of a competent witness with knowledge of the
commission of the offense. See Cipriano v. State, 111 Nev. 534, 540, 894 P.2d 347, 351 (1995), overruled on
other grounds by State of Nevada v. District Court, 114 Nev. 739, 964 P.2d 48 (1998).
____________
116 Nev. 939, 939 (2000) Citizens for Honest Gov't v. Sec. of State
CITIZENS FOR HONEST & RESPONSIBLE GOVERNMENT, Appellant, v. SECRETARY OF STATE,
DEAN HELLER; and CLARK COUNTY COMMISSIONER, YVONNE ATKINSON GATES, Respondents.
No. 34488
October 26, 2000 11 P.3d 121
Appeal from a district court order denying judicial review and affirming the Secretary of State's decision that
appellant's recall petition failed. First Judicial District Court, Carson City; Michael E. Fondi, Judge.
Citizens group sought judicial review of determination by Secretary of State that a second recall petition
relating to county commissioner had failed for lack of sufficient valid signatures. The district court affirmed
determination. Citizens group appealed. The supreme court held that: (1) sixty-day time limit for circulating
recall petition does not unconstitutionally burden citizens' political speech rights under First Amendment; (2)
statutory provisions allowing signatories of recall petitions to remove their names, and permitting use of
statistical sampling to make initial assessment of petition's validity, comply with provision of state constitution
authorizing legislation that aids in the operation of recall right; (3) Administrative Procedure Act does not apply
to judicial review of Secretary of State's decision as to validity of recall petition; and (4) district court's exclusion
of additional exhibits proffered by citizens group was not abuse of discretion.
Affirmed.
Ellsworth Moody & Bennion Chtd., Las Vegas, for Appellant.
Frankie Sue Del Papa, Attorney General, and Kateri M. Cavin, Deputy Attorney General, Carson City, for
Respondent Dean Heller.
Ellis & Gordon, Las Vegas, for Respondent Yvonne Atkinson Gates.
Circulation of a recall petition involves political speech implicating the First Amendment. U.S. Const. amend. 1.
A court considering a challenge to a state election law must weigh the character and magnitude of the asserted injury to the rights
protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate against the precise interests put forward by the
state as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary
to burden the plaintiff's rights. U.S. Const. amends. 1, 14.
Nondiscriminatory state election law that placed sixty-day limitation for gathering signatures on recall petition did not severely
burden voters' political speech rights under First Amendment and was therefore not subject to strict scrutiny; rather, statute would be
examined under more flexible standard involving a weighing of asserted injury to voters' rights against interests put forward by state as
justifying the burden on voters' rights. U.S. Const. amend. 1; NRS 306.015(3).
Statutes must be construed consistent with the constitution.
An act is presumed to be constitutional and will be upheld unless the violation of constitutional principles is clearly apparent.
6. Constitutional Law; Officers and Public Employees.
Sixty-day time limit imposed by state statute for obtaining requisite number of signatures on recall petition did not
unconstitutionally violate citizens' political speech rights under First Amendment. While burdening those rights to a limited extent,
sixty-day limitation served important state interests by promoting efficient regulation of recall petitions so that some sort of order,
rather than chaos, accompanied the process. U.S. Const. amend. 1; NRS 306.015(3).
7. Officers and Public Employees.
Supreme court will consider actual effect of statutory provisions on citizens' recall right to assess whether provisions aid in the
operation of constitutional amendment establishing that right. Const. art. 2, 9.
Statute placing sixty-day limit on circulation of recall petitions aids in the operation of constitutional amendment establishing
recall right and is therefore constitutional. Time limitation furthers efficient administration of recall right and helps to ensure the right
is used for its intended purposes. Const. art. 2, 9; NRS 306.015(3).
Fact that time limits on circulation of referendum and initiative petitions were imposed by constitutional amendment did not
invalidate time limits that were imposed by statutory enactment on circulation of recall petitions. Const. art. 2, 9; art. 19, 1, 2;
NRS 306.015(3).
Comparative ease with which a referendum or initiative petition could succeed in contrast to a recall petition, by virtue of longer
circulation periods and smaller numbers of required signatures, did not render sixty-day time limit for circulating recall petitions
unconstitutional under provision authorizing legislation that aids in the operation of recall right. Const. art. 2, 9; art. 19, 1, 2; NRS
306.015(3).
Statute that permitted signatory to a recall petition to remove name from petition by notifying county clerk aided in the operation
of recall right and thus complied with constitutional amendment establishing that right. Provision gave the electorate greater flexibility
and voice in the exercise of its recall right. Const. art. 2, 9; NRS 306.015(5).
Statutes allowing the Secretary of State to use a statistical sampling procedure to make initial determination of whether a recall
petition had the requisite number of valid signatures were in compliance with provision of state constitution authorizing legislation that
aids in the operation of recall right.
of recall right. Const. art. 2, 9; NRS 293.1276-293.1279, 306.035(2).
Silence of state constitution with respect to use of statistical sampling procedures to make initial determination of whether recall
petition had requisite number of valid signatures did not render such procedures unconstitutional, in view of provision granting
legislature broad authority to pass such legislation as may aid operation of recall right. Const. art. 2, 9; NRS 293.1276-293.1279,
306.035(2).
Judicial review of determination by Secretary of State concerning validity of recall petition is not subject to the procedures
outlined in the Administrative Procedure Act, including requirement that judicial review of agency decision be confined to record that
was in front of agency, because provisions controlling Secretary's review of petition do not require a hearing at which contesting
petitioners may present evidence in support of their case. NRS 233B.032, 233B.130(1)(b), 233B.135(1)(b), 293.12793, 293.12795.
District court's improper conclusion that Administrative Procedure Act (APA) applied to judicial review of determination by
Secretary of State that recall petition had failed for lack of sufficient valid signatures was harmless, where district court recognized
inequity of strictly applying APA and allowed citizens groups that circulated petition to present additional evidence. NRS 233B.032,
233B.130(1)(b), 233B.135(1)(b), 293.12793, 293.12795.
16. Evidence; Trial.
District court has broad discretion in determining whether evidence is relevant or otherwise admissible.
17. Counties.
District court's decision, on judicial review of Secretary of State's determination that a second recall petition relating to county
commissioner lacked requisite number of valid signatures, to exclude exhibits proffered by citizens group that circulated petition, was
not abuse of discretion. Exhibits either did not relate to the second petition or were not necessary to resolution of constitutional
questions considered. NRS 48.025(2), 306.015.
OPINION
Per Curiam:
SUMMARY
This case raises the issues of: (1) whether several provisions of Nevada's recall petition laws violate the
Federal and Nevada Constitutions; and (2) whether the procedures of the Nevada Administrative Procedure
Act (the APA) are to be applied during the judicial review of a Secretary of State's decision regarding an
election petition. The underlying dispute involves two efforts by the Citizens for Honest &
Responsible Government
efforts by the Citizens for Honest & Responsible Government (the Citizens) to recall Clark County
Commissioner Yvonne Atkinson Gates. In both instances, the Secretary of State Dean Heller determined that the
Citizens' petitions failed because they did not contain the requisite number of valid signatures. The Citizens
appealed the Secretary's decision to the district court where they argued that several aspects of Nevada's recall
petition statute were unconstitutional, including: (1) the sixty-day limit for circulating a recall petition; (2) the
provisions allowing individuals signing a recall petition to later remove their names; and (3) the provisions
allowing the Secretary to use a random sample of at least five hundred signatures from the petition to statistically
determine its validity. After a hearing on the matter, at which the court loosely applied the judicial review
procedure provided for in the APA, the district court concluded that the statutes at issue were constitutional. On
appeal, we similarly conclude that the challenged provisions do not violate the Federal or Nevada Constitutions.
Further, we conclude that the APA does not apply to the review proceedings, and that the district court's reliance
on it here was harmless error.
STATEMENT OF FACTS
On March 9, 1998, the Citizens initiated their recall effort by filing a notice of intent to circulate a petition
pursuant to Chapter 306 of the NRS, which provides that a special election be held if the recall petition is
successful. The Nevada Constitution requires that in order for a petition to be successful, the petitioners must
gather signatures from not less than twenty-five percent (25%) of the voters who voted in the election in which
the official was elected. See Nev. Const. art. 2, 9. In this case, valid signatures from 4,380 registered voters in
Gates's district were needed to force a special election.
Two months later, the Citizens submitted their petition containing 7,474 raw signatures to the Clark County
Registrar as required by statute. The next day, pursuant to NRS 306.035, the Secretary ordered the Registrar to
determine the petition's validity by examining the signatures in a random sampling of at least 500 signaturesa
statistical procedure which allows for the quick determination of a petition's failure or success. Of the 503
signatures sampled, the Registrar determined only 244 to be valid. Because the sampling needed to have at least
295 valid signatures, the Secretary declared that the petition was unsuccessful.
Thereafter, the Citizens filed an appeal with the Secretary, who then conducted an investigation and ordered
the Registrar to verify all 7,474 signatures on the first petition. After the results were calculated, the Secretary
again declared that the petition had failed, as it only contained 3,639 verified signatures741
short of the required 4,3S0.
failed, as it only contained 3,639 verified signatures741 short of the required 4,380. Further, the Secretary
determined that the difference between the full verification count and the count predicted by the random
sampling was 0.25%.
On July 6, 1998, the Citizens filed their second notice of intent to circulate a recall petition. After two
months of collecting signatures door-to-door, the Citizens submitted to the Registrar the second petition, which
contained 4,742 signatures. The Secretary again ordered that a random sample of signatures be taken to verify
the petition. This time, 400 of the 500 signatures in the sample were found to be valid, but 416 were required for
the petition to be successful. Accordingly, the Secretary again declared that the petition had failed because, by
applying this sample to the entire petition, it would not contain the required 4,380 valid signatures. The Citizens
once again appealed the Secretary's determination, who again concluded that the petition had failed.
On October 2, 1998, the Citizens filed their Notice of Appeal to District Court to have the Secretary's
decision regarding the second petition judicially reviewed. In this proceeding, the Citizens argued that: (1) the
sixty-day limitation for circulation in NRS 306.015(3) violated the Federal and Nevada Constitutions; (2) the
provision in NRS 306.015(5) allowing individuals who signed a recall petition to remove their names from a
petition upon request to the county clerk violated the Nevada Constitution; and (3) the provisions in NRS
306.035 and NRS 293.1277-.1279 allowing the Secretary to use a statistical sample to make an initial
determination of a recall petition's validity violated the Nevada Constitution.
Because the Nevada statutes were unclear as to what procedure should be utilized at the judicial review
proceeding, the district court decided to apply the procedure provided for in NRS Chapter 233Bthe APA.
Even though the APA requires that the record on appeal be limited to those items that were before the agency,
the district court nonetheless indicated that it would allow the Citizens an opportunity to submit additional
evidence to support its argument. This additional evidence consisted primarily of: (1) correspondence from the
Secretary and news reports regarding the first petition; (2) affidavits of circulators regarding the difficulties of
signature collection; and (3) historical and demographic data concerning recall petitions.
Gates was then allowed to intervene and immediately filed a motion to strike the additional evidence
claiming that the evidence was either prohibited under the APA or immaterial and thus inadmissible. After
reviewing the documents in light of the motion, the district court concluded that the additional evidence was
immaterial or otherwise inadmissible, and struck all additional exhibits.
On May 21, 1999, the district court conducted a hearing on the Citizens' arguments and, by way of written
order on June 23, 1999, concluded that the Nevada statutes at issue were all constitutional, and affirmed the final
order of the Secretary regarding the second petition.
This appeal followed.
DISCUSSION
Whether the sixty-day limitation for petition circulation violates a petitioner's First Amendment rights as
guaranteed by the Federal Constitution
[Headnote 1]
The Citizens first contend that the sixty-day limitation in NRS 306.015(3)
1
impermissibly burdens the
Citizens' ability to circulate their recall petition, thereby restricting political speech in violation of the First
Amendment of the United States Constitution made applicable to the states through the Fourteenth Amendment.
2
Further, the Citizens argue that the regulation's constitutionality is subject to a strict scrutiny analysis, thus
requiring the State to show that the sixty-day limitation is necessary to serve a compelling State interest. We
disagree and hold that a more flexible standard is appropriate for reviewing the sixty-day limitation.
In Burdick v. Takushi, 504 U.S. 428, 430-32 (1992), the United States Supreme Court considered a First
Amendment challenge to Hawaii's prohibition on write-in voting.
__________

1
Specifically, NRS 306.015(3) requires that [t]he persons filing the notice of intent shall submit the petition
that was circulated for signatures to the filing officer within 60 days after the date on which the notice of intent
was filed. Further, the failure to file the petition within the sixty days is punishable as a misdemeanor.

2
Although the recall right is a state-created right, we recognize that circulation of a recall petition involves
political speech implicating the First Amendment. See, e.g., Meyer v. Grant, 486 U.S. 414 (1988). Indeed, the
Citizens analogize the sixty-day time limitation considered here to the Colorado statute considered in Meyer
prohibiting the payment of circulators to help collect signatures for initiative petitions. There, the Court
subjected the prohibition to strict scrutiny after noting that the regulation restricted political expression in two
ways: (1) by limiting the number of voices who will convey [the] message, and therefore the size of the
audience they can reach; and (2) by making it less likely that the circulators will garner the number of
signatures necessary, thus limiting the circulators' ability to make the matter the focus of statewide discussion.
486 U.S. at 422-23. Unlike the regulation in Meyer, the sixty-day time limitation here does not substantively
limit the petitioner's message by regulating the number of voices able to convey that message. Instead, it is a
nondiscriminatory procedural regulation like that considered in Burdick v. Takushi, 504 U.S. 428 (1992) and
discussed below. Accordingly, we conclude that Meyer does not require us to apply strict scrutiny.
lenge to Hawaii's prohibition on write-in voting. In its general discussion of election regulations,
3
the Court
rejected the notion that any law regulating the right to vote is subject to strict scrutiny and noted:
Common sense, as well as constitutional law, compels the conclusion that government must play an
active role in structuring elections; as a practical matter, there must be a substantial regulation of
elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the
democratic processes. . . .
Consequently, to subject every voting regulation to strict scrutiny and to require that the regulation be
narrowly tailored to advance a compelling state interest, as petitioner suggests, would tie the hands of the
States seeking to assure that elections are operated equitably and efficiently.
Burdick, 504 U.S. at 433 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)).
[Headnotes 2, 3]
The Court then announced the following, more flexible, standard that controls our analysis here:
A court considering a challenge to a state election law must weigh the character and magnitude of the
asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to
vindicate against the precise interests put forward by the State as justifications for the burden imposed
by its rule, taking into consideration the extent to which those interests make it necessary to burden the
plaintiff's rights.
Burdick, 504 U.S. at 434 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). Thus, the Court went on
to note that when First Amendment rights are subjected to severe restrictions, the restrictions must be narrowly
drawn to advance a compelling state interest; but when those rights are subjected to reasonable,
nondiscriminatory restrictions, the State's important regulatory interests are generally sufficient to justify the
restrictions. Id.; see also Nevada Judges Ass'n v. Lau, 112 Nev. 51, 910 P.2d 898 (1996) (applying standard to
examine constitutionality of proposed term limit law).
__________

3
The Citizens also attack the applicability of the Burdick standard by noting that the regulation there was an
election regulation, not a petition circulation regulation. We find this distinction unpersuasive because both
types of regulations affect the same First Amendment rights and further the same state regulatory interests.
[Headnotes 4, 5]
Also guiding us in our review of the regulation is the general principle that statutes must be construed
consistent with the constitution and that an act is presumed to be constitutional and will be upheld unless the
violation of constitutional principles is clearly apparent.' Foley v. Kennedy, 110 Nev. 1295, 1300, 885 P.2d
583, 586 (1994) (quoting Sheriff v. Martin, 99 Nev. 336, 340, 662 P.2d 634, 637 (1983)).
The Citizens advance several arguments to demonstrate the character and magnitude of the burden
imposed by the sixty-day limitation. First, the Citizens note that the process of gathering signatures for a petition
is time-consuming and difficult. Next, the Citizens argue that because circulators must ensure that the signatories
live within the elected official's voting district and are registered voters, circulators cannot use centralized
locations for petitioning and are left with the time-consuming process of going door-to-door. Thus, the Citizens
argue that the only reason they failed was because they did not have enough time to circulate the petition at
issue.
While we have no doubt that the process of collecting signatures for a recall petition is an arduous one, we
conclude that the sixty-day limitation does not impose a severe burden on the petitioners. We note that both
petitions had the requisite number of raw signatures, even after the petitioners decided to go door-to-door, and
failed only because of insufficient valid signaturesa point rebutting any claim that gathering the sufficient
number of signatures in sixty days is impossible. Further, the petitioners have not convincingly shown that the
petitions failed solely because of inadequate time. Indeed, it is possible that the recall effort failed due to a lack
of voter support.
4
Accordingly, after weighing the character and magnitude of the asserted injury, we conclude
that the sixty-day limitation is not a severe restriction, but rather one that imposes only a limited burden on the
petitioners' First Amendment rights.
[Headnote 6]
Next, the Citizens argue that the State interests served by the sixty-day limitation do not justify the burden
imposed on the petitioners' First Amendment rights. Specifically, the Citizens argue that the sixty-day limitation
serves only to protect elected officials by making it more difficult for them to be recalled.
__________

4
In an effort to rebut this argument, the Citizens argue that the two petitions, if considered together, contain
well over the requisite number of valid signatures. However, without being able to determine the number of
overlapping signatures between the petitions, the truth of this statement is uncertain at best, and thus
unpersuasive. Further, NRS 306.015(3) prohibits the combining of an earlier petition with a later one.
We recognize, however, that several state interests are served by the limitation. The sixty-day limitation
serves to put all parties involved on notice of when the petition will be submitted so that they may respond
accordingly. Further, the sixty-day limitation discourages frivolous or harassing petitions by requiring a
petitioner to submit the petition after sixty days and to refile if the petition is unsuccessful.
5
We conclude that
these interests are important State interests as they promote the efficient regulation of recall petitions so that
some sort of order, rather than chaos accompanies the process.
Although the sixty-day period necessarily burdens the Citizens' First Amendment rights to a limited extent,
we conclude that the State's important regulatory interests sufficiently outweigh the burden. Thus, we hold that
the sixty-day time limit does not unconstitutionally violate the Citizens' First Amendment rights as guaranteed by
the Federal Constitution.
Whether various provisions of NRS Chapter 306 violate the Nevada Constitution's recall provisions
Nevada's recall right was created by constitutional amendment in 1912 providing the public with an
additional check on its elected officials. See Nev. Const. art. 2, 9. Importantly, the section creating the recall
right in the Nevada Constitution contains a unique provision that [s]uch additional legislation as may aid the
operation of this section shall be provided by law. Id. (emphasis added). Thus, the Citizens contend that many
of the statutory provisions regulating the recall procedures violate this constitutional mandate because they fail
to aid the operation of the recall right.
[Headnote 7]
This court has generally stated that the recall right should be liberally construed with a view to promote the
purpose for which it was enacted. State v. Scott, 52 Nev. 216, 231, 285 P. 511, 514 (1930). Further, in
determining whether legislation regulating the recall procedures aid[s] the operation of the recall right, this
court has held that any statutory provision intended to safeguard the operation of recall procedures aids in the
operation thereof. Fiannaca v. Gill, 78 Nev. 337, 345, 372 P.2d 683, 687 (1962).
__________

5
The Citizens point out that these interests would be equally served by a longer time period and argue that the
sixty-day limitation forces them to work in a frantic, chaotic effort. However, we have already held that sixty
days does not impose a severe restriction and will not question whether a longer time period is perhaps more
reasonable. See Anthony v. State of Nevada, 94 Nev. 337, 341, 580 P.2d 939, 941 (1978) ([T]he judiciary will
not declare an act void because it disagrees with the wisdom of the Legislature.) Instead, we suggest that the
Citizens seek legislative recourse for their argument.
We will also consider the actual effect of the statutory provisions on the recall right to assess whether it aids in
the operation thereof.
The sixty-day limitation on circulation
[Headnote 8]
The Citizens first attack the sixty-day circulation period contained in NRS 306.015 as violating the Nevada
Constitution. Specifically, the Citizens argue that by shortening the amount of time available to the petitioners,
the sixty-day time limitation frustrates and interferes with the recall right, rather than aiding it.
As discussed above, however, the sixty-day time limit serves to notify elected officials of the relevant time
periods involved and discourages frivolous and harassing petitions. Thus, by furthering the efficient
administration of the recall right and helping to ensure that the right is used for its intended purposes, we
conclude that the sixty-day limitation safeguards the recall rights, and thus aids in the operation thereof.
[Headnote 9]
In an additional argument against the sixty-day limitation, the Citizens contrast the recall procedure with
the related referendum and initiative procedure.
6
Like the recall right, the Nevada Constitution requires that
any laws regulating the initiative and referendum procedure facilitate the operation thereof. Nev. Const. art.
19, 5.
The Citizens note that in 1985, Nevadans approved a constitutional amendment imposing specific time limits
on the circulation of referendum and initiative petitions, requiring those petitions to be circulated within one
year of the relevant election or legislative session. See 1987 Nev. Stat., File No. 22, 2348. Thus, the Citizens
argue that time limits on the recall right must similarly be added through constitutional amendment. However,
we are not persuaded that the time-limit changes to the initiative and referendum rights could not have been
made through statutory enactment, especially in light of the legislature's power to enact laws that facilitate the
operation of the referendum and initiative right.
__________

6
The referendum procedure is utilized by the public to show dissatisfaction with a certain statute or resolution
and, if successful, requires that the statute or resolution be approved by the public at the next general election.
See generally Nev. Const. art. 19, 2-6. The initiative procedure is used by the public to enact or amend an
existing statute and, if successful, requires that the proposal be accepted at the next legislative session or, if
rejected by the legislature, be approved by a majority of voters at the next election. See id.
[Headnote 10]
The Citizens further note the comparative ease with which a referendum or initiative petition can succeed in
contrast to a recall petition. Specifically, the Citizens note that referendum or initiative petitions can be
circulated over a time period of as much as one year and require signatures from just ten percent of the
electorate. See Nev. Const., art. 19, 1, 2. However, the interests served by the initiative and referendum
process are sufficiently distinguishable from those involved in the recall process. In particular, a recall petition
attacks a public official whom the public has already once elected and, if successful, requires a costly special
election at the taxpayers' expense. Accordingly, the State has a greater interest in safeguarding the recall
procedure. We therefore conclude that the comparison of recall provisions to referendum and initiative
provisions is unpersuasive to our constitutional inquiry.
The signature removal procedure
[Headnote 11]
The Citizens next contend that NRS 306.015(5),
7
which allows a petition signatory to remove his name
from the recall petition by notifying the county clerk, violates the Nevada Constitution. Specifically, the Citizens
contend that the provision encumbers, rather than aids, the recall right because the rescission right is not
necessary as voters may change their minds at the subsequent special election and sufficient safeguards already
exist in the recall statutes to protect recall signatories from deceit or fraud. These safeguards include the
requirements that the recall petition contain a statement of purpose, that the circulators personally swear to the
accuracy and truth of every page of the petition, and that the failure to turn the petition in before sixty days is
punishable as a misdemeanor.
8
See NRS 306.015(3); 306.020(2); 306.030(2).
By allowing a signatory to subsequently remove his or her name from a recall petition, however, NRS
306.015(5) clearly gives the electorate greater flexibility and voice in the exercise of its recall right.
__________

7
Specifically, NRS 306.015(5) provides that [a]ny person who signs a petition to recall any public officer
may remove his name from the petition by submitting a request in writing to the county clerk at any time before
the petition is submitted for the verification of the signatures thereon pursuant to NRS 306.035.

8
The Citizens note that similar safeguards against misrepresentations do not exist to regulate the signature
removal provisions of NRS 306.015(5). Our review, however, is focused on the provision's constitutionality, not
whether its safeguards are optimal. See Anthony v. State of Nevada, 94 Nev. 337, 341, 580 P.2d 939, 941
(1978) ([T]he judiciary will not declare an act void because it disagrees with the wisdom of the Legislature.).
its recall right. This procedure helps to avoid unnecessary special elections and provides direct recourse for
when signatures are improperly obtained despite the existing safeguards. Accordingly, we conclude that the
signature rescission right contained in NRS 306.015(5) safeguards the recall right, and thus aids in the
operation thereof.
The statistical sampling procedure
[Headnote 12]
Finally, the Citizens contend that NRS 306.035(2) and NRS 293.1276-.1279,
9
which allow the Secretary to
use a statistical sampling procedure to make an initial determination of whether a recall petition has the
requisite number of valid signatures, violates the Nevada Constitution. Specifically, the Citizens contend that
statistical sampling generally undermines, rather than aids, the recall right because it detracts from the
democratic heritage that every individual's vote counts.
[Headnote 13]
By allowing the use of statistical sampling, however, NRS 306.040(1) clearly creates a more efficient, less
costly and less time-consuming process. Further, the Citizens have presented no evidence showing that the
statistical procedure utilized is inaccurate. Indeed, after ordering that the signatures on the Citizens' first
petition be fully verified, the Secretary found that in this case the statistical sampling procedure was accurate to
within 0.25% of the actual number of verified signatures. This small discrepancy is indicative of the sampling
procedure's reliability and rebuts any insinuation that an individual's vote might be overlooked by the
procedure. Further, the sampling procedure outlined at NRS 293.1277 through 293.1279 contains several
safeguards to ensure that the recall right is not infringedincluding, (1) the requirement that the sample have
at least 500 names; (2) the assurance that the sample is drawn at random; and (3) the requirement that a full
verification be ordered if the sampling shows that 90-100% of the signatures required are valid. Accordingly,
we conclude that the statistical sampling procedures provided for in NRS 306.035{2) and NRS
306.040{1) "aid in the operation" of the recall right.
__________

9
Specifically, NRS 306.035(2) provides that if a petition has the requisite number of raw signatures, it must
be submitted to the county clerk for verification using the procedures outlined in NRS 293.1276 to 293.1279,
inclusive. NRS 293.1277(2) then provides that [i]f more than 500 names have been signed on the documents
submitted to him, a county clerk shall examine the signatures by sampling [500 of] them at random for
verification. Finally, NRS 293.1278 and 293.1279 provide that if the sample shows that the number of valid
signatures is less than 90% of the required number, the Secretary shall deem the petition to have failed; if over
100%, the Secretary shall deem the petition to have qualified; if between 90-100%, the Secretary shall order the
county clerk to verify all the signatures on the petition.
NRS 306.035(2) and NRS 306.040(1) aid in the operation of the recall right.
10

Having found that the contested provisions aid in the operation of the recall right, we conclude that they
are constitutional under the mandates of the Nevada Constitution.
Whether the APA applied to the underlying hearing and whether the district court erred in excluding the
Citizens' additional exhibits
The Citizens next contend that the judicial review hearing at the district court was not subject to the
procedures outlined in the APA. Importantly for the Citizens, the APA provides that judicial review of an
agency's final decision is [c]onfined to the record that was in front of the agency. See NRS 233B.135(1)(b).
Thus, if the hearing was subject to the APA, the district court had no discretion in deciding to exclude the
additional exhibits the Citizens submitted.
In general, the APA establishes the procedural requirements by which State agencies are to conduct their
regulation-making and adjudication functions. See NRS 233B.020. The APA also establishes the procedures for
judicial review of these functions. See NRS 233B.130-.150.
Specifically, NRS 233B.130(1)(b) allows judicial review of an agency's final decision in a contested case.
A contested case is defined as:
[A] proceeding . . . in which the legal rights, duties or privileges of a party are required by law to be
determined by an agency after an opportunity for hearing, or in which an administrative penalty may be
imposed.
NRS 233B.032 (emphasis added). The agency hearing must afford all parties an opportunity . . . to respond and
present evidence and argument on all issues. NRS 233B.121.
In Private Investigator's Licensing Board v. Atherley, 98 Nev. 514, 515, 654 P.2d 1019, 1020 (1982), this
court strictly construed these requirements and held that because the statutes controlling
the Private Investigator's Licensing Board did not require "notice and an opportunity for
hearing" before the Board made application determinations, the Board's decisions were
not "contested cases" for purposes of the APA.
__________

10
The Citizens also make the general argument that the regulations and procedures challenged were clearly
not intended by the Nevada Constitution because the Constitution is silent with respect to these procedures. We
conclude that this argument lacks merit because it is contrary to the plain language of art. 2, sec. 9, which grants
the legislature broad authority to pass such legislation as may aid the operation of the recall right. See Charlie
Brown Constr. Co. v. Boulder City, 106 Nev. 497, 503, 797 P.2d 946, 949 (1990) overruled on other grounds,
Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1059 (2000) (courts are not permitted to go beyond the plain
meaning of a statute); see also 80-17 Op. Att'y Gen. 85, 88 (1980) (noting that Chapter 306 of the NRS properly
fills in the details of how the recall right operates because not every detail can be provided for or every problem
anticipated in a constitution).
strued these requirements and held that because the statutes controlling the Private Investigator's Licensing
Board did not require notice and an opportunity for hearing before the Board made application determinations,
the Board's decisions were not contested cases for purposes of the APA.
[Headnote 14]
Similarly, the statutes controlling the Secretary's review of a recall petition do not require a hearing offering
contesting petitioners an opportunity to present evidence in support of their case. See NRS 293.12793 and
293.12795. NRS 293.12793 provides that if an appeal is filed with the Secretary contesting the verification of a
petition, the Secretary need only [c]onsider the allegations and conduct an investigation, if necessary. NRS
293.12795(3), however, provides that after an appeal, the Secretary's decision is a final decision for the
purposes of judicial review and may only be appealed in the first judicial district court.
11
Although NRS
293.12793 and 293.12795 allow judicial review, they do not specify that the procedures of the APA should be
used and, more importantly, do not require a hearing and, therefore, do not create a contested case.
Accordingly, we conclude that the judicial review of a Secretary's determination of a petition's validity is not
subject to the procedures of the APA.
[Headnote 15]
In this case, however, the district court recognized the inequity of strictly applying the APA, and therefore
allowed the Citizens to present additional evidence. Accordingly, we conclude that the district court's use of the
APA here was harmless error because the Citizens were still permitted to advance additional evidence under
traditional evidence rules. Even under traditional evidence rules, however, the Citizens contend that the district
court abused its discretion by excluding the additional exhibits as immaterial.
[Headnote 16]
Under Nevada's rules of evidence, [e]vidence which is not relevant is not admissible. NRS 48.025(2).
Furthermore, the district court has broad discretion in determining whether evidence is relevant or otherwise
admissible. See Prabhu v. Levine, 112 Nev. 1538, 1548, 930 P.2d 103, 110 (1996).
[Headnote 17]
In this case, the additional exhibits consisted of: (1) correspondence from the Secretary and news reports
regarding the first petition;
__________

11
Although this provision may be read to give the first judicial district court sole appellate jurisdiction, we
conclude that the provision only requires an appeal to be filed in the court of the first judicial district located in
Carson City.
tion; (2) affidavits of circulators regarding the difficulties of signature collection; and (3) historical and
demographic data concerning recall petitions. Because these exhibits either did not relate to the second petition,
the sole subject of the district court's review, or were not necessary to the resolution of the constitutional
questions considered, we conclude that the district court did not abuse its discretion in excluding the additional
exhibits.
CONCLUSION
First, we conclude that the sixty-day limit on recall petition circulation does not violate the Federal
Constitution. Further, we conclude that the sixty-day limit, the statutory provisions allowing for the rescission
of signatures on a recall petition, and the statutory provisions allowing for the use of a statistical sampling to
initially assess a petition's validity do not violate the Nevada Constitution. Additionally, we conclude that the
APA does not apply to judicial review of the Secretary's final determination of an election petition under NRS
293.12795(3). Finally, we conclude that the district court did not abuse its discretion in excluding the
additional exhibits proffered by the Citizens.
Accordingly, we affirm the district court's order, which affirmed the determination of the Secretary that the
Citizens' recall petition failed for insufficient signatures.
12

____________
THE STATE OF NEVADA, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA, in and for THE COUNTY OF WASHOE, and THE HONORABLE JEROME M.
POLAHA, District Judge, Respondents, and CALVIN MILES MARSHALL and RAYMOND
EDWARD CURRINGTON, Real Parties in Interest.
No. 36090
November 2, 2000 11 P.3d 1209
Original petition for a writ of mandamus or prohibition challenging a district court order denying motions to
file untimely notices of intent to seek the death penalty. Second Judicial District Court, Washoe County; Jerome
M. Polaha, Judge.
State filed petition for writ of mandamus or prohibition challenging order of the district court denying its
motions to file untimely notices of intent to seek death penalty in murder case. The supreme court held that: (1)
writ sounded in mandamus; (2) supreme court had inherent power to promulgate rules of
criminal procedure,
__________

12
The Honorable A. William Maupin, Justice, voluntarily recused himself from participation in the decision
of this matter.
supreme court had inherent power to promulgate rules of criminal procedure, notwithstanding statute expressly
stating that court might make rules regulating civil practice and procedure; (3) prosecutorial workload was not
good cause for failure to file timely notices; and (4) lack of prejudice to defendants could not supplant express
requirement of good cause showing.
Petition denied.
Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Petitioner.
County, for Real Party in Interest Marshall.
Richard F. Cornell and M. Jerome Wright, Reno, for Real Party in Interest Currington.
1. Mandamus.
Petitions for extraordinary writs are addressed to the sound discretion of the court and may issue only when there is no
plain, speedy, and adequate remedy at law.
2. Mandamus.
State satisfied requirement for writ relief that it have no adequate remedy at law in seeking mandamus relief from order
denying its motion to file late notices of intent to seek death penalty, as State would have no adequate remedy at law if trials
proceeded without death penalty as sentencing option. SCR 250(4)(d).
3. Mandamus.
State's original petition to compel district court to allow filing of untimely notices of intent to seek death penalty sounded
in mandamus. SCR 250(4)(c).
Statute that was silent in regard to giving any notice of intent to seek death other than requiring disclosure of evidence of
aggravating circumstances before the penalty hearing begins did not conflict with court rule requiring State to file notice of
intent to seek death penalty within thirty days after filing of information or indictment. Both were intended to ensure that
defendants in capital cases receive notice sufficient to meet due process requirements. Const. art. 4, 20, 21; NRS 175.552(3);
SCR 250(4)(c).
5. Courts.
Supreme court's procedural rules supersede any conflicting statutes.
Statute providing that supreme court might make rules not inconsistent with statute and constitution for governance of
courts and might make rules regulating civil practice and procedure could not limit supreme court's inherent authority to
regulate criminal procedures under doctrine of separation of powers. Thus, to extent statute sought to curtail that power it
failed. NRS 2.120; SCR 250(4)(c).
7. Courts.
Supreme court's inherent powers extend to creating rules of criminal procedure.
8. Courts; Sentencing and Punishment.
Supreme court had inherent judicial power to promulgate court rule requiring State to file notice of intent to seek death penalty
within thirty days after filing of information or indictment, as part of its inherent power to prescribe rules necessary or desirable to
handle the judicial functioning of the courts. Const. art. 3, 1; art. 4, 20, 21; NRS 175.552(3); SCR 250(4)(c).
Rule allowing court to permit late filing of notice of intent to seek death penalty upon a showing of good cause contemplates
discovery of formerly unknown evidence of aggravating circumstances as grounds for good cause. SCR 250(4)(d).
Under rule allowing court to allow late filing of notice of intent to seek death penalty upon a showing of good cause, mere
oversight by prosecutor does not constitute good cause. SCR 250(4)(d).
Refusal to allow State to file notices of intent to seek death penalty that were more than one month late with respect to one
defendant and more than two months late with respect to other was within district court's discretion, on ground that prosecutor's
workload did not constitute requisite good cause for missing deadline and that lack of prejudice to defendants, who had received
notice at their arraignments that death penalty might be sought, was not basis for allowing late filings. SCR 250(4)(d).
Lack of prejudice to defendant may not supplant express requirement that a showing of good cause before district court may
grant motion to file late notice of intent to seek death penalty. SCR 250(4)(c).
OPINION
Per Curiam:
This is an original petition by the State for a writ of mandamus or prohibition. The petition challenges
district court orders denying motions to file late notices of intent to seek the death penalty. The State contends
that it should be allowed to file the late notices for two reasons. First, it claims that the district court erred in
following SCR 250(4)(c), which requires a notice of intent to seek death to be filed within thirty days after the
filing of the information. The State argues that the rule is invalid because it conflicts with a statute and this
court lacks authority to promulgate rules of criminal procedure. Second, assuming SCR 250 is valid, the
State claims that the district court abused its discretion in failing to find good cause for late filing of
the notices.
ing to find good cause for late filing of the notices. We conclude that extraordinary relief is not warranted.
FACTS
Early in the morning on June 26, 1999, David Kloehn was stabbed to death while working as a bartender at
Mr. O's Corner Bar in Reno. He received numerous wounds, including to both eyes. Raymond Edward
Currington and Calvin Miles Marshall, the real parties in interest here and the defendants below, were the last
patrons seen in the bar, at around 3:15 a.m., before Kloehn's body was discovered a little after 4:00 a.m. Later
that day police searched Currington's pickup truck and a motel room occupied by him and Marshall. The police
found incriminating evidence, including blood stains in the truck which matched the victim's blood and racks of
tokens in the motel room taken from Mr. O's Corner Bar.
Two days later, the State filed an amended criminal complaint charging Currington and Marshall with
first-degree murder with use of a deadly weapon, robbery with use of a deadly weapon, and conspiracy to
commit robbery with use of a deadly weapon. Pursuant to former SCR 250(4)(a),
1
the State also filed a notice
reserving the right to seek the death penalty.
The Washoe County Public Defender was appointed to represent Marshall, and two Deputy Public
Defenders were assigned to the case. Two other lawyers were later appointed for Currington. The defendants'
cases were severed. Marshall's preliminary hearing occurred in July 1999, and Currington's in August 1999.
Both were bound over for trial on all counts.
Informations charging the same counts as in the amended complaint were filed, one against Marshall on
July 22, 1999 (District Court Case No. CR99-1319), and another against Currington on September 1, 1999
(CR99-1575). Notices of intent to seek the death penalty against the two men were not submitted to the district
court until November 3, 1999: 104 days after the information was filed against Marshall and 63 days after the
information was filed against Currington. Absent good cause, SCR 250(4) requires such notice no later than
thirty days after the filing of an information. The State moved in each case for leave to file the notices, alleging
good cause for their lateness. Marshall and Currington opposed the motions.
On January 4, 2000, the district court heard arguments on the filing of the untimely notice of intent to seek
the death penalty in Currington's case and ruled to allow it. About five weeks later, however, the court
changed its position in Marshall's case and denied the State's motion for leave to file the
late notice.
__________

1
Before its amendment effective January 20, 2000, SCR 250(4)(a) required the State to declare at the
defendant's first appearance before a magistrate whether it reserved the right to seek the death penalty.
however, the court changed its position in Marshall's case and denied the State's motion for leave to file the late
notice. The court then reconsidered its previous ruling in Currington's case and denied the State's motion there as
well. (The facts relevant to these rulings are set forth below in discussing the district court's exercise of its
discretion.) Pursuant to the State's request, the district court stayed its proceedings until this court rules on the
present petition.
DISCUSSION
[Headnote 1]
Petitions for extraordinary writs are addressed to the sound discretion of the court and may issue only when
there is no plain, speedy, and adequate remedy at law. Parsons v. District Court, 110 Nev. 1239, 1242, 885
P.2d 1316, 1318 (1994); NRS 34.170; NRS 34.330. A writ of mandamus may issue to compel the performance
of an act which the law requires as a duty resulting from an office, trust, or station. See NRS 34.160. A writ of
prohibition may issue to arrest the proceedings of a district court exercising its judicial functions when such
proceedings are in excess of the court's jurisdiction. NRS 34.320.
[Headnotes 2, 3]
Here, the State has no adequate remedy at law if the trials proceed without the death penalty as a sentencing
option. Because the State seeks to compel the district court to allow the filing of the notices of intent to seek the
death penalty, we treat the State's petition as one for mandamus relief.
Mandamus will not lie to control discretionary action, unless discretion is manifestly abused or is exercised
arbitrarily or capriciously. Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536
(1981) (citation omitted). Even when mandamus is available as a remedy, we are not compelled to issue the
writ because it is purely discretionary. State ex. rel. Dep't Transp. v. Thompson, 99 Nev. 358, 361, 662 P.2d
1338, 1340 (1983).
The validity of SCR 250
The State contends that SCR 250(4) is invalid and so the district court acted without authority in denying the
State's motions to file the late notices of intent to seek death. The State claims that SCR 250(4) conflicts with
NRS 175.552(3). It also claims that only the Legislature can enact rules of criminal procedure and that this
court's issuance of SCR 250 violates the separation of powers set forth in the Nevada Constitution. We conclude
that both claims lack merit.
NRS 175.552(3) provides in relevant part: The state may introduce evidence of additional aggravating
circumstances as set forth in NRS 200.033, other than the aggravated nature of the offense itself, only if it has
been disclosed to the defendant before the commencement of the penalty hearing.
SCR 250(4)(c) provides:
No later than 30 days after the filing of an information or indictment, the state must file in the district
court a notice of intent to seek the death penalty. The notice must allege all aggravating circumstances
which the state intends to prove and allege with specificity the facts on which the state will rely to prove
each aggravating circumstance.
SCR 250(4)(d) provides in part:
Upon a showing of good cause, the district court may grant a motion to file a late notice of intent to
seek the death penalty or of an amended notice alleging additional aggravating circumstances. The state
must file the motion within 15 days after learning of the grounds for the notice or amended notice.
The alleged conflict between rule and statute
Referring to NRS 175.552(3), the State argues that other than providing a time limit within which to allege
aggravating factors, our legislature set forth no time limits for filing of a notice of intent to seek the death
penalty. Indeed, the procedure set forth by our legislature does not require such a pleading. The State
concludes, therefore, that an irreconcilable conflict exists between the statute and SCR 250(4). This
conclusion is unwarranted.
2

[Headnote 4]
There is no conflict between the rule and the statute. NRS 175.552 is silent in regard to giving any notice of
intent to seek death other than requiring disclosure of evidence of aggravating circumstances before the penalty
hearing begins. The State construes this silence as precluding requirement of any earlier notice, as if the statute
provided that no notice of intent to seek death is required earlier than immediately before the penalty
hearing. The State offers no basis for reading the statute this way, and such a reading is untenable.
If NRS 175.552(3) precluded requiring any notice of intent to seek death earlier than before the
commencement of the penalty hearing, then the prosecution could conduct an entire murder trial and obtain a
guilty verdict, or obtain a guilty plea, before informing a defendant that he faced a possible death
sentence.
__________

2
Even if the two conflicted, the rule would prevail, as we discuss below.
informing a defendant that he faced a possible death sentence. We doubt that the State could seriously maintain
that such a procedure would satisfy constitutional due process. In fact, this court has already held that technical
compliance with NRS 175.552 failed to satisfy due process in one case. See Emmons v. State, 107 Nev. 53, 807
P.2d 718 (1991). In Emmons, the court held that the purpose of NRS 175.552 is to ensure due process and that
notice of aggravating evidence provided one day before the commencement of a penalty hearing was inadequate
to meet the requirements of due process. Id. at 62, 807 P.2d at 724. In another case, in concluding that formal
notice of an aggravating circumstance given one week before a penalty hearing did not violate due process, this
court relied in part on the fact that notice to seek the death penalty had been filed over three months before the
hearing. See Rogers v. State, 101 Nev. 457, 466-67, 705 P.2d 664, 670-71 (1985).
We conclude that SCR 250(4) and NRS 175.552(3) do not conflict and that both are intended to ensure that
defendants in capital cases receive notice sufficient to meet due process requirements.
This court's authority to promulgate rules
Even if the rule and statute do not conflict, the State's position is that SCR 250 has no force because this
court had no authority to issue it. Extensive case law contradicts the State's position.
This court has repeatedly and consistently held that the courts of this state have the power to make their own
procedural rules. The judiciary, of course, has the inherent power to govern its own procedures; and that
power includes the right to adopt and promulgate rules of procedure. Whitlock v. Salmon, 104 Nev. 24, 26,
752 P.2d 210, 211 (1988). [T]here are regulating . . . powers of the Judicial Department that are within the
province of the judicial function, i.e., . . . promulgating and prescribing any and all rules necessary or desirable
to handle the business of the courts or their judicial functions. Galloway v. Truesdell, 83 Nev. 13, 23, 422 P.2d
237, 244 (1967). See also Goldberg v. District Court, 93 Nev. 614, 617, 572 P.2d 521, 523 (1977).
[Headnote 5]
Further, this court's procedural rules supersede any conflicting statutes.
We have held that the legislature may not enact a procedural statute that conflicts with a pre-existing
procedural rule, without violating the doctrine of separation of powers, and that such a statute is of no
effect. Furthermore, where . . . a rule of procedure is promulgated in conflict with a
preexisting procedural statute, the rule supersedes the statute and controls.
rule of procedure is promulgated in conflict with a preexisting procedural statute, the rule supersedes the
statute and controls.
State v. Connery, 99 Nev. 342, 345, 661 P.2d 1298, 1300 (1983) (citation omitted); see also SCR 249(2).
Nevertheless, the State maintains, as follows, that this court had no power to promulgate SCR 250.
The Nevada Constitution provides that the Legislature may enact general laws [r]egulating the practice of
courts of justice. See Nev. Const. art. 4, 20 and 21.
3
This court has held that the Legislature has the power
to regulate procedure in criminal cases. See, e.g., Colwell v. State, 112 Nev. 807, 813, 919 P.2d 403, 407
(1996). Article 3, Section 1 of the Nevada Constitution provides:
1. The powers of the Government of the State of Nevada shall be divided into three separate
departments,the Legislative,the Executive and the Judicial; and no persons charged with the exercise
of powers properly belonging to one of these departments shall exercise any functions, appertaining to
either of the others, except in the cases expressly directed or permitted in this constitution.
Based on this authority, the State reasons: one department of government can never exercise a power belonging
to another; the Legislature has the power to regulate criminal procedure; therefore, that power belongs
exclusively to the Legislature, and this court cannot have such power. We disagree.
Under the Nevada Constitution two departments can in some cases exercise the same power. Article 3,
Section 1, provides that persons in one department can exercise functions appertaining to another in the cases
expressly directed or permitted in this constitution. As cases such as Whitlock, Galloway, and Goldberg make
clear, the regulation of criminal procedure is a power inherently appertaining to the judicial department. We
conclude that the Legislature may exercise this function too only because Sections 20 and 21 of Article 4 permit
it to do so. And, to reiterate, to the extent that any legislative regulation in this area contradicts the
judiciary's exercise of its inherent power, the latter prevails.
__________

3
Article 4, Section 20, provides in part:
The legislature shall not pass local or special laws in any of the following enumerated casesthat is
to say:
. . .
Regulating the practice of courts of justice[.]
Article 4, Section 21, provides:
In all cases enumerated in the preceding section, and in all other cases where a general law can be
made applicable, all laws shall be general and of uniform operation throughout the State.
tradicts the judiciary's exercise of its inherent power, the latter prevails. See Connery, 99 Nev. at 345, 661 P.2d
at 1300.
The State also cites NRS 2.120, which provides:
1. The supreme court may make rules not inconsistent with the constitution and laws of the state for
its own government, the government of the district courts, and the government of the State Bar of
Nevada. . . .
2. The supreme court, by rules adopted and published from time to time, shall regulate original and
appellate civil practice and procedure . . . .
The State stresses that NRS 2.120(2) only addresses rules regulating civil practice and procedure, not criminal
proceedings. Further, it asserts that the rule-making allowed by NRS 2.120(1), for the government of the
courts, does not entail procedure or practice. It concludes therefore that this statute precludes this court from
promulgating criminal procedural rules.
This argument is of no avail. NRS 2.120 cannot limit this court's inherent authority to regulate criminal
procedures. Pursuant to the doctrine of separation of powers,
it is clear that the judiciary, as a coequal branch of government, has inherent powers to administer its
affairs, which include rule-making and other incidental powers reasonable and necessary to carry out the
duties required for the administration of justice. Any infringement by the legislature upon such power is
in degradation of our tripartite system of government and strictly prohibited.
Although these inherent powers exist independent of constitutional or statutory grant, we have
recognized that [t]he legislature may, by statute, sanction the exercise of inherent powers by the courts,
and the courts may acquiesce in such pronouncements by the legislature, . . . Lindauer v. Allen, 85 Nev.
430, 434, 456 P.2d 851, 854 (1969). Even so, we remain ever mindful that such statutes are merely
legislative sanctions of independent rights already belonging to the courts, and where, as here, those
statutes attempt to limit or destroy an inherent power of the courts, [such statutes] must fail. Lindauer v.
Allen, 85 Nev. at 434, 456 P.2d at 854.
Goldberg, 93 Nev. at 615-17, 572 P.2d at 522 (citations and footnotes omitted) (alterations in original).
[Headnote 6]
Thus, to the extent that NRS 2.120 countenances and codifies this court's independent power to regulate
judicial procedures, it is valid. To the extent that it seeks to curtail that power, it fails.
[Headnote 7]
Finally, the State concedes that this court has certain inherent powers but claims that these do not extend to
creating rules of criminal procedure. The State professes to be unable to discern the starting point for such an
inherent power. It offers, however, no apposite authority or cogent argument for the proposition that the
judiciary lacks such power.
The origin and nature of the inherent powers of the judiciary are definitively explained in Galloway, 83 Nev.
13, 422 P.2d 237.
Judicial Power is the capability or potential capacity to exercise a judicial function. That is,
Judicial Power is the authority to hear and determine justiciable controversies. Judicial power includes
the authority to enforce any valid judgment, decree or order. A mere naked power is useless and
meaningless. The power must be exercised and it must function to be meaningful. . . . Judicial function
includes the right to exercise any lesser power that can be subsumed under, or is included as an integral
part of, the broader heading of Judicial Power; that is, any power or authority that is inherent or
incidental to a judicial function is properly within the realm of judicial power, as described above.
Id. at 20, 422 P.2d at 242.
In addition to the constitutionally expressed powers and functions of each Department, (the
Legislative, the Executive, and the Judicial) each possesses inherent and incidental powers that are
properly termed ministerial. Ministerial functions are methods of implementation to accomplish or put
into effect the basic function of each Department. No Department could properly function without the
inherent ministerial functions. Without the inherent powers of ministerial functions each Department
would exist in a vacuum. It would be literally helpless.
Id. at 21, 422 P.2d at 243.
While the licensing and regulating of subjects such as marriage, businesses, concealed weapons, and public
utilities are properly within the legislative sphere,
there are regulating and licensing powers of the Judicial Department that are within the province of the
judicial function, i.e., licensing attorneys to practice law; prescribing rules of professional conduct for
attorneys and judges; disbarring attorneys; promulgating and prescribing any and all rules necessary or
desirable to handle the business of the courts or their judicial functions. In short, everything is a proper
subject of licensing, controlling and regulating when the authority asserted by the judiciary
can logically and legitimately be traced back to, and is derived from, the Judicial
Power, as described above.
the authority asserted by the judiciary can logically and legitimately be traced back to, and is derived
from, the Judicial Power, as described above.
Id. at 23, 422 P.2d at 244 (emphasis added).
[Headnote 8]
Therefore, this court indisputably possesses inherent power to prescribe rules necessary or desirable to
handle the judicial functioning of the courts, and properly falling within that power are the provisions in SCR
250(4) requiring the State to give a defendant notice of intent to seek the death penalty.
The district court's exercise of its discretion
Even if SCR 250 is valid, the State contends that extraordinary relief is in order because the district court
abused its discretion in denying the motions for leave to file the untimely notices of intent to seek the death
penalty. We conclude that the court acted within its discretion under SCR 250(4).
Facts
As good cause for the late filings, the State's motions informed the district court that the State had been
gathering information on each defendant's prior convictions to determine if certain aggravating circumstances
were present. The motions also explained that the District Attorney's office staffs murder cases, i.e., evaluates
the aggravating circumstances to determine if death is an appropriate sentence to seek. The motions further
stated that the prosecutor had been involved in the prosecution of a murder trial of two defendants which began
on May 24, 1999,
4
and another murder trial of two defendants which began on September 13, 1999.
Preparation for the latter, a retrial, required review of more than two thousand pages of trial transcripts. At the
evidentiary hearing on the State's motion in Currington's case, the prosecutor told the court: So during the
course of the pendency of this case, I was wrapped up in other matters. And . . . the notice didn't get filed on
time. When I discovered that I had failed to file the notice, I filed it that day, took it over to the defense. The
State also argued that the defendants were not prejudiced because they had been put on notice that the State
might seek the death penalty when they were arraigned in June 1999.
Attached to the State's motions were notices of intent to seek the death penalty. In regard to Currington, the
notice alleged two aggravating circumstances: the murder was committed while he was engaged in the
commission of or an attempt to commit orflight after committing or attempting to commit
a robbery {NRS 200.033{4)), and the murder involved torture or mutilation of the victim
{NRS 200.033{S)).
__________

4
Currington and Marshall were not even arrested until more than a month later. Unless the trial starting in
May was unusually long, it has no relevance to the deadlines involved here, late August and early October
1999.
was engaged in the commission of or an attempt to commit or flight after committing or attempting to commit a
robbery (NRS 200.033(4)), and the murder involved torture or mutilation of the victim (NRS 200.033(8)). The
notice referenced the evidence adduced at the preliminary hearing to support the first aggravator and the autopsy
report to support the second. In regard to Marshall, the notice alleged the same two aggravating circumstances
plus two others: when Marshall committed the murder, he was under sentence of imprisonment (NRS
200.033(1)) and had been convicted of a felony involving the use or threat of violence (NRS 200.033(2)). To
support the two additional aggravators, the State would present evidence from the Colorado Department of
Corrections that Marshall had been on parole at the time of the murder and evidence from Adams County,
Colorado, that he had committed two robberies in 1992.
In denying the State's motion in Marshall's case, the district court concluded the following. The language of
SCR 250(4)(c) and (d) was plain and unambiguous. The time limit for filing a notice of intent was mandatory,
and late filing was permissible only for good cause. The State alleged good cause based on the work load of the
office and the complexity of death penalty cases, but this does not rise to the level of good cause under SCR
250(4)(d). Everything that the State considered in this case before deciding to seek the death penalty was
known to it prior to the arraignment in the district court. There was no good cause shown for the delay. The
court noted its earlier contrary ruling in regard to Currington, where it had decided
that the purpose of the Rule was to put the defendants on notice that the ultimate penalty was being
sought . . . and that the State satisfied that requirement by its filing the reservation to seek the death
penalty in the Justice Court. . . . However, the Rules contemplate such a filing and still require the formal
notice to be filed 30 days after the filing of the Information in the district court.
The court concluded:
If a busy workload passes muster in this case then the doors will be thrown open to the next inquiry of
what constitutes busyhow busy must a prosecutor be before a court says not enough. This could not be
what the Supreme Court had in mind when it wrote the Rules. Such an interpretation would render both
4(c) and 4(d) nugatory with regard to the early time limits and attribute to the Supreme Court the
performance of idle ceremony in enacting such requirements.
In denying the State's motion in Currington's case, the district court explained: [T]he only discretion for the
Court to exercise is whether to allow a late filing when information concerning aggravators was not in the
possession of the state prior to the 30 day filing deadline.
The State filed supplemental points and authorities and moved for reconsideration of the district court's
orders. The district court denied that motion as well.
Discussion
SCR 250(4)(c) requires the State to file a notice of intent to seek the death penalty [n]o later than 30 days
after the filing of an information. SCR 250(4)(d) provides:
Upon a showing of good cause, the district court may grant a motion to file a late notice of intent to
seek the death penalty or of an amended notice alleging additional aggravating circumstances. The state
must file the motion within 15 days after learning of the grounds for the notice or amended notice. If the
court grants the motion, it shall also permit the defense to have a reasonable continuance to prepare to
meet the allegations of the notice or amended notice. The court shall not permit the filing of an initial
notice of intent to seek the death penalty later than 30 days before trial is set to commence.
There is no dispute that the State failed to meet the (4)(c) filing deadline by a month in Currington's case
and more than two months in Marshall's case. The only question is whether the district court manifestly abused
its discretion or exercised it arbitrarily or capriciously in finding no good cause under (4)(d) for the late filings.
See Round Hill, 97 Nev. at 603-04, 637 P.2d at 536.
In contending that the district court abused its discretion, the State relies primarily on SCR 249(1): The
rules set forth in this part shall be liberally construed to secure the proper and efficient administration of the
business and affairs of the court in the cases to which these rules apply and to promote and facilitate the
administration of justice by the court. (Emphasis added.) The State stresses that the defendants would not be
prejudiced by a late filing since they learned at their arraignment that the State might seek a death sentence and
qualified counsel were appointed for them. Therefore, the State argues, the district court clearly abused its
discretion by not liberally construing SCR 250(4)(d) and finding that the prosecutor's busy schedule and the
complexity of a capital prosecution constitute good cause for a late filing.
The State offers, at first glance, a colorable argument for the proposition that the district court might have
been within its discretion if it had allowed the late filings in this case.
5
However, the argument does not even
begin to establish that the district court manifestly abused its discretion or acted arbitrarily or capriciously in not
allowing the late filings, as is required for this court to grant extraordinary relief. On the contrary, the record
shows that the district court carefully considered SCR 250(4) and the facts and then acted reasonably and within
its discretion in concluding that no good cause existed.
We decline, however, to adopt in whole the district court's reading of SCR 250(4)(d). The first sentence of
(4)(d) provides that the district court may grant a motion to file a late notice of intent to seek death [u]pon a
showing of good cause. The second sentence requires the State to file the motion within fifteen days of
learning of the grounds for the notice. The district court concluded that this phrase refers to the prosecution's
discovery of formerly unknown evidence of a statutory aggravator and that only this circumstance can constitute
good cause. The State asserts: Absent an explicit enumeration of what good cause is and [is not], that question
must be decided on a case-by-case ad hoc basis.
[Headnote 9]
The district court was correct to conclude that SCR 250(4)(d) contemplates discovery of formerly unknown
evidence of aggravating circumstances as grounds for good cause. However, we do not conclude that this is
the only conceivable instance which could constitute good cause or that the language of the rule requires such a
narrow interpretation. Nor is such a narrow reading necessary to support the district court's ruling. Here, the
court reasonably determined that the workload of the prosecutor and the complexity of the case did not
constitute good cause.
[Headnote 10]
The district court also correctly concluded that mere oversight on the part of a prosecutor does not constitute
good cause. The reason for the late filings in this case was simply that the prosecutor overlooked the
deadline:
__________

5
We address the essential weaknesses in the State's argument in the body of the opinion. However, it is also
questionable whether the liberally construe provision of SCR 249(1) is as broad as the State supposes. The
United States Supreme Court considered the effect of Federal Rule of Criminal Procedure 2, which states that
the rules shall be construed to secure simplicity in procedure, fairness in administration and the elimination of
unjustifiable expense and delay.' See Carlisle v. United States, 517 U.S. 416, 424 (1996) (quoting Rule 2). The
Court concluded that Rule 2 sets forth a principle of interpretation to be used in construing ambiguous rules,
not a principle of law superseding clear rules that do not achieve the stated objectives. Id.
cutor overlooked the deadline: When I discovered that I had failed to file the notice, I filed it that day. Nothing
prevented the prosecutor from immediately submitting the notices once he noticed the deadline had passed. The
State has not disputed the district court's finding that [e]verything that the State considered in this case before
deciding to seek the death penalty was known to it prior to the arraignment. An attorney's inadvertence alone
is not good cause. State v. Dearbone, 883 P.2d 303, 306 (Wash. 1994).
[Headnote 11]
We conclude that the district court acted within its sound discretion in finding that no good cause existed in
this case.
[Headnote 12]
The State relies on the lack of prejudice to the defendants as a basis for allowing the late filings. SCR
250(4)(d) does not expressly mention prejudice, but its third sentence implicitly deals with prejudice by
requiring a reasonable continuance for the defense when a late filing is allowed. Thus, if prejudice to the
defendant results from the filing of a late notice of intent to seek the death penalty, it can be cured by a
reasonable continuance. And as a bright-line rule to prevent prejudice, the fourth sentence of (4)(d) provides that
in no event can an initial notice of intent (as opposed to an amended notice) be filed later than thirty days before
trial. However, nothing in the rule suggests that lack of prejudice to the defendant can supplant the express
requirement of a showing of good cause before the district court may grant a motion to file a late notice of intent
to seek death.
The State cites decisions by the Arizona Supreme Court upholding trial court rulings allowing late filing of a
notice of intent to seek the death penalty absent prejudice to the defendant. See State v. Jackson, 918 P.2d 1038,
1042 (Ariz. 1996); State v. Lee, 917 P.2d 692, 698-99 (Ariz. 1996). However, unlike SCR 250, the relevant
Arizona rules do not require good cause for a late filing, but instead charge the trial court with broad discretion
to impose an appropriate sanction should the prosecution fail to comply with the filing deadline. See Jackson,
918 P.2d at 1042 (citing Arizona Rules of Criminal Procedure 15.1(g)(1), 15.1(g)(4), and 15.7). Also, these
Arizona decisions affirm on direct appeal rulings to allow a late filing; they do not grant extraordinary relief and
overturn a trial court's ruling to deny a late filing.
Currington cites Washington case law, which supports the district court's ruling here. A Washington statute
requires the prosecution to file notice of its intent to seek the death penalty within thirty days of arraignment
unless good cause is shown for an extension.
extension. State v. Luvene, 903 P.2d 960, 976 (Wash. 1995); Dearbone, 883 P.2d at 304-05. The Washington
Supreme Court held: [G]ood cause requires a reason external to the prosecutor for his failure to serve notice.
Without this external reason, defendant's actual notice of the State's intent and the corresponding lack of
prejudice to defendant's case is irrelevant. Dearbone, 883 P.2d at 305.
Thus, despite the lack of prejudice to the defendants, the district court acted within its sound discretion in not
permitting the late notices to be filed.
CONCLUSION
SCR 250 is a valid product of this court's inherent authority to regulate procedure in criminal cases. The
district court acted within its discretion in applying the rule and denying the State's motions to file late notices
of intent to seek the death penalty. We therefore deny the State's petition for an extraordinary writ.
____________
116 Nev. 968, 968 (2000) Taylor v. Thunder
RUSSELL E. TAYLOR, SR., Appellant, v. NAOMI RUTH WALKING EAGLE THUNDER, aka NAOMI
VAN ZANT, By and Through Her Legal Guardian, AHTRUM THUNDER, Respondent.
No. 32424
November 22, 2000 13 P.3d 43
Appeal from a final judgment on a jury verdict in a personal injury action. Third Judicial District Court,
Churchill County; Archie E. Blake, Judge.
Minor brought personal injury action against alleged seducer. Following jury trial, the district court entered
judgment for minor. Alleged seducer appealed. The supreme court, Leavitt, J., held that: (1) evidence of guilty
plea or offer to plead guilty from prior criminal proceeding is admissible in subsequent civil proceeding, subject
to exclusion on grounds of prejudice, confusion, or waste of time; (2) alleged seducer's withdrawn offer to plead
guilty to statutory sexual seduction in connection with incident at issue was admissible for impeachment
purposes; (3) evidence of prior bad acts may be admitted in civil proceedings provided evidence is relevant,
prior incident is proven by clear and convincing evidence, and probative value is not substantially outweighed by
danger of unfair prejudice; (4) testimony concerning alleged seducer's prior sexual misconduct involving
minor stepdaughter was admissible;
prior sexual misconduct involving minor stepdaughter was admissible; and (5) evidence supported finding that
alleged seducer engaged in sexual activity without minor's consent.
Affirmed.
[En banc reconsideration denied October 2, 2001]
Richard F. Cornell, Reno, for Appellant.
Robin A. Wright, Reno, for Respondent.
1. Witnesses.
Withdrawn offer to plead guilty to statutory sexual seduction was admissible as a prior inconsistent statement, in minor's personal
injury action against alleged seducer in connection with same incident, to impeach alleged seducer's testimony that he did not commit
any of the sexual acts described by minor and would never knowingly commit a felony. NRS 48.035(1), 48.125(1).
2. Evidence.
Evidence of a guilty plea or offer to plead guilty from a prior criminal proceeding is admissible in a subsequent civil proceeding,
subject to exclusion on grounds of undue prejudice, confusion, or waste of time. NRS 48.035(1), 48.125(1).
3. Evidence.
Testimony concerning alleged seducer's prior sexual misconduct involving his minor stepdaughter was admissible in another
minor's personal injury action against alleged seducer to prove opportunity, intent, or common plan or scheme. NRS 48.035(1).
4. Evidence.
Evidence of prior bad acts may be admitted in civil proceedings provided the evidence is relevant, the prior incident is proven by
clear and convincing evidence, and probative value is not substantially outweighed by danger of unfair prejudice. NRS 48.035(1).
Determination of the district court concerning admissibility in civil proceedings of evidence relating to prior bad acts is to be given
great deference and will not be reversed absent manifest error.
Standard for reviewing sufficiency of evidence to support jury verdict is whether substantial evidence supports the verdict.
7. Seduction.
Jury's finding that alleged seducer engaged in sexual activity with minor without minor's consent was supported, in minor's
personal injury action, by minor's testimony that she did not try to get away during the incident because she was scared, that she told
alleged seducer no in response to his invitation to have oral sex, and that she did not move or otherwise participate during
intercourse.
Before Shearing, Agosti and Leavitt, JJ.
OPINION
This case is a civil lawsuit for damages arising from appellant's sexual seduction of a minor. After a
six-day trial, the jury returned a substantial verdict against appellant totaling nearly $250,000.00. On
appeal, appellant argues that the district court erred in admitting evidence of a withdrawn guilty plea
memorandum and evidence of prior sexual misconduct with a different minor. Appellant also asserts that
insufficient evidence supports the jury verdict. We conclude that all of appellant's arguments lack merit,
and therefore affirm the district court's judgment.
FACTS
Prior to the commencement of the present civil action, appellant was criminally charged with three counts
of statutory sexual seduction. The alleged victim of these crimes was fourteen-year old Naomi. After agreeing
to plead guilty to one count, appellant signed a guilty plea memorandum admitting that he digitally
penetrated the victim's vagina. At the time to enter the plea, appellant changed his mind and dismissed his
attorney, and the matter was set for trial. Appellant later agreed to plead nolo contendere to one count. The
other two counts were dismissed.
By and through her guardian, Naomi initiated the present personal injury action against appellant for the
sexual seduction. At trial, Naomi testified that appellant, among other things, penetrated her vagina with his
finger and penis and performed cunnilingus on her. Afterward, appellant told Naomi that she did not need to
worry about getting pregnant because he had undergone a vasectomy. Because she was scared, Naomi did
not tell her mother about the incident until the next evening. Her mother immediately took her to the sheriff's
office, where she gave a description of what happened.
Sergeant Jim Steuart of the sheriff's office suggested that Naomi place a call to appellant to confront him
about not using a condom, hypothesizing that if Naomi's account of the incident was false then appellant's
response would be one of surprise or ignorance. Naomi placed the call, with Steuart listening in, and
thereafter Steuart immediately memorialized the conversation in writing, as follows:
A male voice then answered. Naomi responded, Russ I'm scared
Male voiceabout what
Naomiyou didn't use a condom last night
Male voiceyou don't have to worry about it, there's no problem
Male voiceI told you about it last night
Naomiyou wouldn't lie to me
Male voiceI'm your friend
Male voiceare you coming over tonight
Naomino
Male voiceI'll give you your thing this weekend.
Naomi told Steuart that the thing appellant referred to was a necklace appellant had promised to give to her.
Naomi's counsel sought to call Barbara Fox-Judd to testify regarding appellant's prior misconduct. Appellant
objected and the district court conducted a hearing outside the presence of the jury. Fox-Judd testified that
appellant repeatedly performed acts of cunnilingus on her from the time she was eight or nine years old until she
was thirteen years old, during which time appellant was her stepfather. At the conclusion of the hearing, the
district court determined that: the evidence was relevant with respect to opportunity, intent, or common plan or
scheme; the prior wrongs were proven by clear and convincing evidence; and the evidence was more probative
than prejudicial. Accordingly, the district court allowed the witness to testify in front of the jury. Immediately
prior to her testimony, the district court instructed the jury that it was not to consider [Fox-Judd's] testimony in
the light that the defendant acted in conformity with that testimony with respect to Naomi Thunder, but to
consider that testimony only in the light of intent, common plan or scheme, and opportunity to commit the act.
Appellant testified that he did not commit any of the sexual acts described by Naomi and that he would never
knowingly commit a felony. On cross-examination, Naomi's counsel requested a hearing outside the presence of
the jury and asked for leave of the court to impeach appellant with the withdrawn guilty plea memorandum,
arguing that appellant ought to be confronted with his prior inconsistent statement that he had, in fact, committed
a felony. Counsel further argued that appellant could then explain to the jury why he had made the statement in
the guilty plea memorandum and let the jury evaluate the credibility of appellant's testimony. The district court
allowed part of the guilty plea memorandum into evidence for the purpose of impeachment as a prior
inconsistent statement. The district court concluded that NRS 48.125(1) did not prevent the guilty plea
memorandum from being admitted because the statute only restricted a guilty plea (or an offer to plead guilty)
from being admitted in a criminal trial, not a civil trialunlike NRS 4S.125{2), which restricts
evidence of a nolo contendere plea {or an offer to plead nolo contendere) from being
admitted in both criminal and civil trials.
a civil trialunlike NRS 48.125(2), which restricts evidence of a nolo contendere plea (or an offer to plead nolo
contendere) from being admitted in both criminal and civil trials.
The admitted portion of appellant's withdrawn guilty plea memorandum stated, as follows:
I, Russell Taylor, Senior, did on the 10th day of May, 1994, or thereabouts, at 1100 Wildes Road,
within Churchill County, Nevada, willfully and unlawfully, being over twenty-one years of age, commit
an act of statutory sexual seduction with the person of a female child who was then and there under the
age of sixteen years, in that I, Russell Taylor, Senior, engaged in an act of penetration of her vagina with
my finger with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of
the child or myself.
I fully understand that this admission may be used against me in a court of law should I fail to abide
by the terms and conditions of this agreement.
After this excerpt was read to the jury, appellant admitted that it was an accurate reading of the memorandum.
At the conclusion of the six-day trial, the jury awarded Naomi $207,000.00 in compensatory damages,
consisting of the following: $1,800.00 for past medical expenses; $5,200.00 for future medical expenses; and
$200,000.00 for past pain and suffering. The jury also awarded $25,000.00 in punitive damages, based on their
finding that appellant was guilty of malice or oppression.
DISCUSSION
I. Admissibility of offer to plead guilty
[Headnote 1]
Appellant argues that the district court committed reversible error in admitting evidence surrounding his
withdrawn offer to plead guilty in the preceding criminal case. Based on the plain language of NRS 48.125(1),
we conclude that this argument lacks merit. See Crowley v. Duffrin, 109 Nev. 597, 603, 855 P.2d 536, 540
(1993) (quoting Union Plaza Hotel v. Jackson, 101 Nev. 733, 736, 709 P.2d 1020, 1022 (1985)) (stating that
this court is not empowered to go beyond the face of a statute to lend it a construction contrary to its clear
meaning' ). NRS 48.125(1) only limits the admissibility of guilty pleas or offers to plead guilty in criminal
proceedings, but makes no mention of their inadmissibility in civil proceedings.
Further, because civil proceedings are mentioned in subsection 2 of NRS 48.125 but omitted from subsection
one, we do not construe the statute as prohibiting the admission of guilty pleas and offers to
plead guilty in civil proceedings.
strue the statute as prohibiting the admission of guilty pleas and offers to plead guilty in civil proceedings. See
Pasadena Police Officers v. Pasadena, 797 P.2d 608, 614 (Cal. 1990) (stating that [w]hen the Legislature has
employed a term or phrase in one place and excluded it in another, it should not be implied where excluded' )
(citations omitted); see also SIIS v. Wrenn, 104 Nev. 536, 539, 762 P.2d 884, 886 (1988) (stating that this court
will not imply provisions not expressly included in [a] legislative scheme).
[Headnote 2]
Accordingly, we hold that evidence of a guilty plea or offer to plead guilty from a prior criminal proceeding
is admissible in a subsequent civil proceeding, subject to NRS 48.035(1).
II. Admissibility of prior misconduct
[Headnote 3]
Appellant contends that the district court committed reversible error in permitting Barbara Fox-Judd to
testify regarding appellant's prior misconduct. In the context of a criminal case, we have held that, prior to the
admission of evidence of other wrongs, the district court must conduct a hearing on the record outside the
presence of the jury and determine: (1) that the evidence is relevant to the crime charged; (2) that the other
act is proven by clear and convincing evidence; and (3) that the probative value of the other act is not
substantially outweighed by the danger of unfair prejudice. Qualls v. State, 114 Nev. 900, 902, 961 P.2d 765,
766 (1998) (citing Tinch v. State, 113 Nev. 1170, 1176, 946 P.2d 1061, 1064-65 (1997); Armstrong v. State,
110 Nev. 1322, 1323-24, 885 P.2d 600, 600-01 (1994)). The district court's decision to admit or exclude the
evidence after conducting such a hearing, commonly referred to as a Petrocelli
1
hearing, is to be given great
deference and will not be reversed absent manifest error. Qualls at 902, 961 P.2d at 766 (citations omitted).
[Headnotes 4, 5]
We now extend the rule to civil proceedings. Evidence of prior bad acts may be admitted provided the
evidence is relevant and the prior incident is proven by clear and convincing evidence. Even if the trial court
determines that the prior bad act evidence is relevant, the evidence is not admissible if its probative value is
substantially outweighed by the danger of unfair prejudice. NRS 48.035(1). The determination of the district
court is to be given great deference and will not be reversed absent manifest error.
__________

1
Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985).
Here, the district court properly held a Petrocelli hearing out of the presence of the jury and determined that:
(1) the evidence of appellant's prior misconduct was relevant to opportunity, intent, or common plan or scheme;
(2) the prior wrongs were proven by clear and convincing evidence; and (3) the probative value of the evidence
was not substantially outweighed by the danger of unfair prejudice. Our examination of the record reveals no
basis for appellant's claim that the district court's determination constitutes manifest error. We conclude that the
district court did not err in admitting the evidence.
III. Sufficiency of the evidence
[Headnote 6]
Finally, appellant contends that there was insufficient evidence adduced at trial to support the jury verdict.
Our standard of review is whether substantial evidence supports the verdict. See Frances v. Plaza Pacific
Equities, 109 Nev. 91, 94, 847 P.2d 722, 724 (1993); Bally's Employees' Credit Union v. Wallen, 105 Nev. 553,
555-56, 779 P.2d 956, 957 (1989). Substantial evidence is that which a reasonable mind might accept as
adequate to support a conclusion. ' Yamaha Motor Co. v. Arnoult, 114 Nev. 233, 238, 955 P.2d 661, 664
(1998) (quoting State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted))). Where, as in this case, there is conflicting
evidence, this court is not free to weigh the evidence, and all inferences must be drawn in favor of the prevailing
party. Smith v. Timm, 96 Nev. 197, 202, 606 P.2d 530, 532 (1980).
[Headnote 7]
Despite the conflicting evidence noted by appellant, there was evidence presented in the form of Naomi's
testimony that appellant did in fact engage in sexual activity with her and that she did not consent. The victim
testified that she did not try to get away during the incident because she was scared, that she told appellant no
in response to his invitation to have oral sex, and that she did not move or otherwise participate during
intercourse. Drawing all inferences in the victim's favor, we conclude that a reasonable mind could accept this
evidence to support the conclusion that appellant engaged in sexual activity with the victim without her consent.
Because there was substantial evidence from the victim's testimony that she was an unwilling participant, we
need not decide the issue of whether her consent was presumed. Accordingly, we affirm the jury verdict.
IV. Conclusion
Having reviewed all of appellant's contentions and concluded that they lack merit, we affirm the judgment of
the district court.
____________
BRIAN HUGHES, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 34045
November 22, 2000 12 P.3d 948
Appeal from a judgment of conviction, pursuant to a jury verdict, of one count of possession of a controlled
substance and one count of being an ex-felon in possession of a firearm. Fifth Judicial District Court, Nye
County; John P. Davis, Judge.
After his motion to suppress was denied, defendant was convicted in the district court of possession of a
controlled substance, and being an ex-felon in possession of a firearm. Defendant appealed. The supreme court,
Leavitt, J., held that: (1) warrantless search of vehicle in which defendant was riding as passenger when it was
stopped by police following pursuit was justified under automobile exception to Fourth Amendment's warrant
requirement, (2) testimony was sufficient to establish foundation for admission of drugs and gun found in
vehicle, and (3) convictions were supported by evidence.
Affirmed.
Harry R. Gensler, Public Defender, Nye County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Robert S. Beckett, District Attorney, and Sharon Y.
Dockter, Deputy District Attorney, Nye County, for Respondent.
Warrantless searches are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well
delineated exceptions. U.S. Const. amend. 4.
Automobile exception to Fourth Amendment's warrant requirement allows a warrantless search of a vehicle if there is probable
cause to believe that criminal evidence is located in the vehicle, and there exist exigent circumstances sufficient to dispense with the
need for a warrant. U.S. Const. amend. 4.
Casino security guard's report that shots had been fired at casino, and description of vehicle in which shooting suspects had fled
and its license plate number,
116 Nev. 975, 976 (2000) Hughes v. Stater
license plate number, established probable cause to believe that weapons were located in vehicle, as would potentially justify
warrantless search of vehicle matching description, which had been stopped following pursuit, under automobile exception to Fourth
Amendment's warrant requirement. U.S. Const. amend. 4.
The imminent arrest of the occupants of a vehicle following a pursuit from the scene of a crime leaves the vehicle on the roadside
subject to a police inventory search and later impoundment, and thus creates a sufficient exigent circumstance to satisfy second prong
of automobile exception to Fourth Amendment's warrant requirement. U.S. Const. amend. 4.
Imminent arrest of occupants of vehicle, which matched description given by casino security guard of vehicle in which persons
suspected of having fired shots at casino had fled, and which had been stopped following police pursuit, created exigent circumstances
sufficient to justify warrantless search of vehicle under automobile exception to Fourth Amendment's warrant requirement. U.S. Const.
amend. 4.
6. Courts.
Decision by supreme court in Brown v. State, 114 Nev. 1118, 967 P.2d 1126 (1998), that, where State seeks convictions on
multiple counts, including a count of possession of a firearm by an ex-felon, fairness requires severance of counts, applies
prospectively only. NRS 202.360.
7. Criminal Law.
Testimony of state trooper and police detective was sufficient to allow jury to conclude that controlled substances and guns
presented at trial were the same evidence found in vehicle in which defendant was a passenger at time of his arrest, and thus to satisfy
foundational requirements for admission of evidence, even though name of trooper, who made arrest, did not appear on chain of
custody.
8. Criminal Law.
It is not necessary to negate all possibilities of substitution or tampering with an exhibit in order to satisfy chain of custody
requirements. It is sufficient to establish only that it is reasonably certain that no tampering or substitution took place, and the doubt, if
any, goes to the weight of the evidence.
9. Criminal Law.
Standard of review in determining sufficiency of evidence to support conviction is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.
10. Weapons.
Conviction for being an ex-felon in possession of a firearm was supported by evidence that search of vehicle in which defendant,
who had a prior felony conviction, had been riding as passenger in rear seat behind driver, uncovered a gun behind metal bar under
driver's seat, and that when found gun faced toward the front of the vehicle with the hammer pulled back. NRS 202.360.
Conviction for possession of a controlled substance was supported by discovery of duffel bag containing marijuana in vehicle in
which defendant was a passenger when it was lawfully stopped, and by defendant's voluntary statements identifying the bag as his, and
testimony of witness who had previously seen defendant carrying a similar duffel bag,
witness who had previously seen defendant carrying a similar duffel bag, which were sufficient to establish that marijuana belonged to
defendant.
OPINION
A Nevada State Trooper responded to a radio report that shots had been fired at a local casino. The
Trooper was flagged down by a casino security guard, who provided the license plate number and
description of the vehicle allegedly containing the shooting suspects. Shortly thereafter, the Trooper
caught up with the vehicle and initiated a felony stop, whereby the vehicle's four occupants, including
appellant, were removed from the vehicle at gunpoint and handcuffed. The Trooper then searched the
vehicle for weapons and found marijuana and a handgun which were later used to convict appellant of
possession of a controlled substance and being an ex-felon in possession of a firearm.
Appellant appeals, contending, among other things, that the warrantless search of the vehicle was
illegal. We conclude that the search was valid because it was supported by probable cause and because
exigent circumstances existed to justify the search.
FACTS
Nevada State Trooper Scott Cobel heard a report over his police radio that shots had been fired at the
Saddle West Hotel & Casino in Pahrump, Nevada. Trooper Cobel immediately responded to the casino where
he was flagged down by a security guard, who gave a license plate number and description of the vehicle in
which the shooting suspects had left.
Trooper Cobel proceeded southbound on State Route 160 until he caught up with the vehicle and pulled it
over. Cobel drew his weapon and ordered the four occupants of the vehicle to raise their hands. At the time of
the stop, appellant was sitting in the back seat of the vehicle, behind the driver. With the assistance of another
Trooper, Cobel then conducted a felony traffic stop, wherein he ordered each of the vehicle's occupants at
gunpoint to step out of the car, one at a time. As each occupant stepped out of the vehicle, Cobel performed a
quick pat-down search, handcuffed the individual, and sat him or her down on the side of the road.
Trooper Cobel then searched the vehicle for weapons. Cobel testified that when he searched the vehicle,
officer safety was not an issue because the four suspects were temporarily restrained and had
been patted down for weapons.
an issue because the four suspects were temporarily restrained and had been patted down for weapons.
Beneath the driver's seat, Cobel found a Beretta semiautomatic handgun (Beretta). The Beretta was located
behind a metal bar which adjusts the seat, with the barrel pointed towards the front of the car and the hammer
pulled back. Cobel also found marijuana in a black duffel bag. A casino security guard reported seeing appellant
outside the casino carrying a black duffel bag. Methamphetamine and a second handgun were also recovered by
police, as well as a third handgun which was thrown from the vehicle prior to the stop, but appellant was only
convicted on charges related to the Beretta and the marijuana.
Appellant and the other occupants of the vehicle were arrested. Sergeant Steve Huggins of the Nye County
Sheriff's Office informed Trooper Cobel that the sheriff's office would be handling the case, including gathering
the evidence, and asked Cobel to return the Beretta, marijuana, and other evidence to the vehicle. Cobel placed
the evidence back inside the vehicle.
Appellant was charged and tried on three counts of being an ex-felon in possession of a firearm (one count
for the Beretta and two counts for the other two handguns) and two counts of possession of a controlled
substance (one count for the marijuana in the black duffel bag and one count for methamphetamine found in the
car). The ex-felon in possession of a firearm counts were brought pursuant to NRS 202.360
1
and the possession
counts were brought pursuant to NRS 453.336.
2

Prior to trial, appellant filed a motion to suppress the evidence obtained in the warrantless search of the
vehicle. Appellant did not file a motion to request a severance of the counts of being an
ex-felon in possession of a firearm from the other counts.
__________

1
1. A person who has been convicted of a felony in this or any other state, or in any political
subdivision thereof, or of a felony in violation of the laws of the United States of America, unless he has
received a pardon and the pardon does not restrict his right to bear arms, shall not own or have in his
possession or under his custody or control any firearm.
2. As used in this section, firearm includes any firearm that is loaded or unloaded and operable or
inoperable.
3. A person who violates the provisions of this section is guilty of a category B felony and shall be
punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum
term of not more than 6 years, and may be further punished by a fine of not more than $5,000.

2
1. A person shall not knowingly or intentionally possess a controlled substance, unless the substance
was obtained directly from, or pursuant to, a prescription or order of a physician, physician's assistant,
dentist, podiatric physician, optometrist or veterinarian while acting in the course of his professional
practice, or except as otherwise authorized by the provisions of NRS 453.011 to 453.552, inclusive.
not file a motion to request a severance of the counts of being an ex-felon in possession of a firearm from the
other counts.
The district court conducted a hearing outside the presence of the jury in order to make a determination on
appellant's suppression motion. After hearing testimony from Trooper Cobel, the district court denied the
suppression motion, concluding as follows:
Knowing that there was likely a gun and it wasn't found on the persons stopped, it was only reasonable
for the officers to conclude that the gun or guns would likely be in the car. It was unreasonable under
these factual circumstances to not search for weapons.
In any event this Court would find based on the likelihood of firearms there has been an adequate
showing of exigent circumstances to search for firearms.
Ultimately, the jury returned guilty verdicts on one count of being an ex-felon in possession of a firearm (for
the Beretta found under the driver's seat) and one count of possession of a controlled substance (for the
marijuana found in the black duffel bag). For the count of being an ex-felon in possession of a firearm, the
district court sentenced appellant to twenty-eight (28) to seventy-two (72) months in prison. For the count of
possession of a controlled substance, the district court sentenced appellant to a concurrent sentence of twelve
(12) to forty-eight (48) months in prison, to be suspended during a probationary term of five years. Appellant
received credit for 262 days served prior to sentencing. Appellant now appeals.
DISCUSSION
We first examine appellant's contention that the district court erred in denying his motion to suppress
evidence obtained as a result of the warrantless search of the vehicle in which appellant was a passenger.
[Headnotes 1, 2]
Warrantless searches are per se unreasonable under the Fourth Amendment subject only to a few
specifically established and well delineated exceptions.' Barrios-Lomeli v. State, 113 Nev. 952, 957, 944 P.2d
791, 793 (1997) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). One such exception is the
automobile exception, which applies if two conditions are present: first, there must be probable cause to
believe that criminal evidence was located in the vehicle; and second, there must be exigent circumstances
sufficient to dispense with the need for a warrant. State v. Harnisch, 113 Nev. 214, 222-23, 931 P.2d 1359,
1365 {1997) {Harnisch I) {citation omitted);
1359, 1365 (1997) (Harnisch I) (citation omitted); see also State v. Harnisch, 114 Nev. 225, 228-29, 954 P.2d
1180, 1183 (1998) (Harnisch II) (concluding that, under the Nevada Constitution, both probable cause and
exigent circumstances must exist to justify the warrantless search of a parked, immobile and unoccupied
vehicle).
[Headnote 3]
Our review of the record in this case indicates that there was sufficient probable cause to believe that
weapons were located in the vehicle, based on the security guard's description of the vehicle and the report that
shots had been fired in the casino. Thus, the first prong of the automobile exception is met.
The second prong of the automobile exception, exigent circumstances, was recently addressed in Fletcher v.
State, 115 Nev. 425, 990 P.2d 192 (1999). Prior to Fletcher, our decisions applied the automobile exception
only in the context of an automobile that was parked, immobile and unoccupied at the time the police first
encountered it,' not in the context of a vehicle stopped along the roadside by police after pursuit from the scene
of a crime, as in this case. Harnisch II, 114 Nev. at 228, 954 P.2d at 1182 (quoting State v. Kock, 725 P.2d
1285, 1287 (Or. 1986)) (emphasis added and original emphasis omitted). Because Fletcher concerned a roadside
search, as opposed to a search of a parked and unoccupied vehicle, we distinguished it from prior cases which
invalidated warrantless searches. Fletcher's arrest caused the vehicle to be left on the roadside subject to a
police inventory search and later impoundment, creating what we conclude to be a sufficient exigent
circumstance distinct from the parked, unoccupied vehicles in Harnisch I, Harnisch II, and Barrios-Lomeli.
Fletcher, 115 Nev. at 430, 990 P.2d at 195.
[Headnotes 4, 5]
We conclude that the imminent arrest of appellant and the other occupants of the vehicle, following a pursuit
from the scene of a crime, would similarly leave the vehicle on the roadside subject to a police inventory search
and later impoundment, creating. . . a sufficient exigent circumstance to satisfy the second prong of the
automobile exception. Id. As in Fletcher, it would likewise in this case be unreasonable to require the police to
remain at the scene of the arrest pending the arrival of a warrant or assign an officer to accompany the tow truck
to an impound yard pending the arrival of a warrant. Id. We therefore conclude that under the circumstances of
this case there existed sufficient exigent circumstances to justify a warrantless search of the vehicle.
The warrantless search of the vehicle was supported by probable cause and the roadside stop of the
vehicle following pursuit from the scene of a crime created exigent circumstances to
justify the search.
ble cause and the roadside stop of the vehicle following pursuit from the scene of a crime created exigent
circumstances to justify the search. Therefore, we conclude that the district court did not err in admitting the
evidence found during the search.
[Headnote 6]
Next, appellant contends that the district court erred in failing to sever the counts of being an ex-felon in
possession of a firearm from the remaining counts. We disagree. In Brown v. State, 114 Nev. 1118, 1126, 967
P.2d 1126, 1131 (1998) (emphasis added), we stated that to ensure fairness in those future cases where the
State seeks convictions on multiple counts, including a count of possession of a firearm by an ex-felon pursuant
to NRS 202.360, we now hold that severance of counts pursuant to NRS 202.360 is required. Because this
language indicates that Brown has prospective application only, and because appellant's case was tried prior to
Brown, severance was not required. See also Schoels v. State, 115 Nev. 33, 36, 975 P.2d 1275, 1277 (1999)
(stating that the rule in Brown was not constitutionally demanded and had prospective application only).
Moreover, appellant failed to file a motion for severance.
[Headnotes 7, 8]
Appellant next contends that the district court erred in admitting evidence of the controlled substances and
guns found in the vehicle, because the State laid inadequate foundation for the evidence due to a lack of chain of
custody. Although Trooper Cobel's name did not appear on the chain of custody, the jury was reasonably able to
conclude from his and Detective Huggins' testimony that the evidence presented at trial was in fact the same
evidence retrieved from the vehicle. It is not necessary to negate all possibilities of substitution or tampering
with an exhibit . . . it is sufficient to establish only that it is reasonably certain that no tampering or substitution
took place, and the doubt, if any, goes to the weight of the evidence. Sorce v. State, 88 Nev. 350, 352-53, 497
P.2d 902, 903 (1972) (citing Oliver v. State, 85 Nev. 10, 449 P.2d 252 (1969); Carter v. State, 84 Nev. 592, 446
P.2d 165 (1968); Eisentrager v. State, 79 Nev. 38, 378 P.2d 526 (1963)). Accordingly, we conclude that this
contention lacks merit.
[Headnotes 9-11]
Finally, we consider appellant's contention that insufficient evidence was adduced at trial to support his
conviction.
3
Our standard of review is whether, after viewing the evidence in the light most favorable
to the prosecution,
__________

3
Appellant makes this argument in connection with his assertion that cumulative error warrants a new trial.
Because the record is devoid of any error, appellant's cumulative error contention lacks merit.
light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.' Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984) (quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979)). After reviewing the evidence in the light most favorable to the
prosecution, we conclude that the jury could draw reasonable inferences from the evidence to establish all
elements of the crimes charged. For example, the location of the Beretta behind the metal bar under the seat,
coupled with the fact that the gun faced toward the front of the car with the hammer pulled back, when viewed in
the light most favorable to the prosecution, could lead any rational trier of fact to infer that appellant placed the
Beretta under the seat and was therefore in possession of it. Likewise, any rational trier of fact could conclude
that the marijuana in the black duffel bag belonged to appellant, because of (1) his voluntary statements
identifying the bag as his and (2) because the casino security guard saw appellant carrying a black duffel bag
outside the casino.
CONCLUSION
We conclude that the district court did not err in admitting the evidence obtained in the warrantless search
of the vehicle in which appellant was a passenger because the search was supported by probable cause and
exigent circumstances existed in that the search occurred contemporaneously with the roadside arrest of
appellant and the other occupants of the vehicle following pursuit from the scene of a crime. We conclude that
appellant's remaining contentions also lack merit. Accordingly, we affirm appellant's conviction.
____________
116 Nev. 982, 982 (2000) Parrish v. State
TAGGART PARRISH, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32972
November 22, 2000 12 P.3d 953
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of trafficking in a controlled
substance and one count of obstructing and resisting a public officer with the use of a dangerous weapon. Second
Judicial District Court, Washoe County; Brent T. Adams, Judge.
Defendant was convicted in the district court of trafficking in a controlled substance, and obstructing and
resisting a public officer with the use of a dangerous weapon.
cer with the use of a dangerous weapon. Defendant appealed, challenging trial court's refusal to grant a
suspended sentence on trafficking count based on his provision of substantial assistance to law enforcement. The
supreme court, Agosti, J., held that: (1) where such a motion for suspended or reduced sentence is filed, district
court must expressly state its finding as to whether substantial assistance has been provided; and (2) new
sentencing hearing was required, as record did not allow determination whether district court had made finding
that substantial assistance was not provided, or had exercised its discretion not to reduce sentence despite
substantial assistance.
Conviction affirmed, sentence vacated, and case remanded for new sentencing hearing.
Robert C. Bell, Reno, for Appellant.
1. Criminal Law.
Record was insufficient to allow reviewing court to determine whether district court had made finding that defendant
charged with trafficking in a controlled substance had not provided substantial assistance to authorities, as required to be
eligible for a suspended or reduced sentence, or alternatively, had found such assistance, but exercised its discretion to deny a
reduced or suspended sentence, and thus, remand for new penalty hearing was required. In light of evidence provided by
defendant, court could have found that defendant provided substantial assistance, but record was unclear as to whether it did
so. NRS 453.3385(3), 453.3405(2).
District court is afforded wide discretion when sentencing a defendant.
District court's wide discretion when sentencing a defendant is not limitless, and a district court may not abuse its
discretion.
4. Criminal Law.
On appeal, in the absence of a showing of an abuse of discretion, reviewing court will not disturb sentence imposed by
district court.
Nothing in statute under which a defendant convicted of a drug trafficking offense may receive a suspended or reduced
sentence if he renders substantial assistance in prosecuting other drug traffickers requires police to personally work with a
defendant who is attempting to provide substantial assistance. NRS 453.3405(2).
An arrest of other persons engaged in drug trafficking is not a necessary prerequisite to a determination that a defendant
convicted of a drug trafficking offense has rendered substantial assistance to authorities, as will make defendant eligible for a
suspended or reduced sentence. NRS 453.3405(2).
Once defendant convicted of a drug trafficking offense makes an appropriate motion for a suspended or reduced sentence, on basis
that he has provided substantial assistance to authorities, district court may permissibly exercise its discretion in two ways: court may
find that a defendant has not rendered substantial assistance under the statute, and therefore is not eligible for a sentence reduction or
suspension, and even if court finds that a defendant has rendered substantial assistance, court is still free in its discretion to reduce or
suspend the sentence. NRS 453.3405(2).
8. Criminal Law.
Appellate court may imply factual findings if the record clearly supports the lower court's ruling.
When evidence is presented to the district court concerning whether or not a defendant charged with drug trafficking offense has
rendered substantial assistance to authorities, as will make him eligible for a suspended or reduced sentence, district court is required to
expressly state its finding concerning whether or not substantial assistance has been provided. NRS 453.3405(2).
OPINION
Pursuant to a plea of guilty, appellant Taggart Parrish was found guilty of trafficking in a controlled
substance in violation of NRS 453.3385(3) and resisting and obstructing a public officer with the use of a
dangerous weapon in violation of NRS 199.280(1). As permitted under NRS 453.3405(2), Parrish moved
for a suspended sentence on the trafficking count. His motion was predicated upon his assertion that he
had provided substantial assistance to law enforcement consistent with NRS 453.3405(2). NRS
453.3405(2) allows the district court, at its discretion, to reduce or suspend the sentence of anyone
convicted of certain drug-trafficking offenses, if the district court finds that the convicted person
rendered substantial assistance in the identification, arrest or conviction of other drug traffickers. NRS
453.3405(2) (emphasis added). The district court in this case made no findings concerning whether
Parrish had performed substantial assistance, but proceeded to sentence Parrish to life imprisonment, the
maximum sentence allowed.
On appeal, Parrish contends that the district court abused its discretion by failing to find that he had
provided substantial assistance as defined in NRS 453.3405(2). Based upon the state of the record, we are
unable to determine whether the district court erred in its application of the law or, alternatively,
whether the district court found that Parrish had provided substantial assistance but, in its
discretion, denied his motion for a reduced or suspended sentence.
district court found that Parrish had provided substantial assistance but, in its discretion, denied his motion for a
reduced or suspended sentence. This ambiguous record compels the conclusion that the defendant is entitled to a
new penalty hearing. We therefore vacate Parrish's sentence and remand this case to the district court to conduct
a new sentencing hearing before a different district judge.
FACTS
On March 9, 1998, police stopped a vehicle in which the appellant, Taggart Parrish, was riding as a
passenger. Parrish attempted to flee on foot from the officers. Immediately, several officers gave chase. During
the foot pursuit, Parrish attempted to aim a handgun in one officer's direction. Fortunately, the officer knocked
the handgun out of Parrish's hand. A lengthy struggle ensued, during which Parrish attempted to reach the
handgun numerous times. Finally, the police subdued and arrested Parrish. The police subsequently discovered
methamphetamine in the vehicle in which Parrish had been riding.
After Parrish's arrest, detectives assigned to the Consolidated Narcotics Unit (CNU) met with Parrish at
the jail to discuss the possibility that Parrish would provide substantial assistance pursuant to NRS
453.3405(2). The detectives testified that Parrish was very cooperative during this meeting. Parrish, in
conjunction with his fiance, provided information concerning fourteen individuals allegedly involved in drug
trafficking. The information was detailed and particular, including names and telephone numbers, maps of
areas where police could find drug traffickers, information about surveillance, and how the police could protect
themselves during later investigations.
The CNU detectives admitted that it was a large list and conceded that Parrish had supplied more
information than would normally be provided by others attempting to render substantial assistance.
Furthermore, the detectives testified that they recognized three names on the list Parrish provided. One person
on the list had already been arrested in California. At the time of Parrish's sentencing hearing, two other
individuals on the list had been arrested through means unrelated to the information provided by Parrish. When
asked whether he would have liked to have followed up on the information Parrish had provided, one of the
CNU detectives responded that he was definitely interested in doing so.
However, CNU detectives never investigated the information Parrish gave them. When asked during the
sentencing hearing why they had not followed up on these leads, a CNU detective explained:
Caseload and priorities. Priorities of the unit in the last couple of months have not been to respond to
these types of leads. I mean, we have been responding to citizens' complaints, and there's an operation
that we have been involved with over the last couple of months that has taken all of our time.
Besides a lack of time and other priorities, CNU detectives testified that because of the events surrounding
Parrish's arrest, they would not work with Parrish because Parrish would present a danger to officers. The
detectives testified that normally the CNU works with defendants who are attempting to provide substantial
assistance by having the defendant participate in a controlled buy, that is, the police would [fit the
defendants] with a wire, giv[e] them money and hav[e] them do a buy for us. However, the detectives admitted
that it was possible to investigate the information without involving Parrish and that they were willing to try that
approach. Nevertheless, the information Parrish had provided was never investigated in this, or any other,
manner.
The detectives also testified that it is the CNU's opinion that lists, like the one provided by Parrish, do not
constitute substantial assistance [u]nless we fully follow it up and it result[s] in arrest. Furthermore, the
detectives stated that their supervisors do not like officers testifying at a defendant's sentencing hearing that the
defendant provided substantial assistance unless the information provided resulted in actual bodies and product.
That's their policy.
1

In addition to a fine of not more than $500,000.00, the punishment for trafficking in twenty-eight or more
grams of a controlled substance is either: (1) life imprisonment, with the possibility of parole after a minimum of
ten years has been served; or (2) a definite term of twenty-five years imprisonment, with the possibility of parole
after a minimum of ten years has been served. NRS 453.3385(3). Additionally, NRS 453.3405(1) mandates that
a defendant convicted of trafficking in a controlled substance is not eligible for a reduced or suspended sentence.
2

The district court continued Parrish's sentencing hearing on two separate occasions. While Parrish claims that
the district court continued his sentencing hearing because the CNU was working with
Parrish,
__________

1
NRS 453.3405(2) requires that the arresting law enforcement agency be given an opportunity to be heard
concerning whether the defendant has rendered substantial assistance.

2
Except as provided in subsection 2, the adjudication of guilt and imposition of sentence of a person found
guilty of trafficking in a controlled substance in violation of NRS 453.3385, 453.339 or 453.3395 must
not be suspended and the person is not eligible for parole until he has actually served the mandatory
minimum term of imprisonment prescribed by the section under which he was convicted.
continued his sentencing hearing because the CNU was working with Parrish, the record reveals that the first
scheduled sentencing hearing was continued because Parrish's new attorney was only assigned to the case the
day before the hearing. The second scheduled sentencing hearing was continued for reasons not stated in the
record. We assume, for purposes of this appeal, that the sentencing hearing was continued for the second time in
order to allow Parrish additional time to work with the police. The district court then denied Parrish's request to
continue the sentencing hearing a third time to allow the CNU more time to follow up on the information he had
provided, and proceeded with sentencing.
At the sentencing hearing, Parrish moved for a suspended sentence on the trafficking count pursuant to NRS
453.3405(2). Parrish was informed by the written plea memorandum, his attorney and the district court at the
time he entered his plea of guilty that he was not eligible for probation on the trafficking count unless the district
court determined that he had complied with the provisions of NRS 453.3405(2) by rendering substantial
assistance to law enforcement officials. The district court heard evidence on Parrish's motion at the sentencing
hearing. However, the district court made no finding concerning whether Parrish had or had not provided
substantial assistance. Instead, the district court sentenced Parrish to the maximum prison sentence allowed for
the crime of trafficking in a controlled substance.
3

On appeal, Parrish claims that the district court abused its discretion by failing to find that he rendered
substantial assistance in accordance with NRS 453.3405(2).
4
Based on our review of the record, it is unknown
whether the district court failed to find that Parrish rendered substantial assistance based upon a
misinterpretation of the statute, and thereby erred in its application of the law, or whether the district court found
that Parrish did provide substantial assistance pursuant to the statute but declined, in the exercise of its
discretion, to reduce or suspend Parrish's sentence. Accordingly, we vacate Parrish's sentence and remand the
case to the district court for a new sentencing hearing before a different district judge.
__________

3
For the crime of trafficking in a controlled substance, the district court sentenced Parrish to life
imprisonment and ordered Parrish to pay a fine of $25,000.00. The district court sentenced Parrish to a
consecutive term of twelve to forty-eight months in prison for obstructing and resisting a public officer with the
use of a dangerous weapon.

4
Parrish also contends that he did not receive the benefit of his plea agreement, or, more precisely, as Parrish
put it in his brief to this court, that there was a clear violation of the sanctity of the plea agreement or bargain.
See Santobello v. New York, 404 U.S. 257 (1971). Because we hold that Parrish is entitled to a new sentencing
hearing for reasons related to the substantial assistance statute, we need not address this argument.
DISCUSSION
[Headnote 1]
NRS 453.3405(2) allows the district court, upon proper motion, to reduce or suspend the sentence of the
defendant when the district court finds the defendant rendered substantial assistance in the identification or
apprehension of other drug traffickers. NRS 453.3405(2) reads:
The judge, upon an appropriate motion, may reduce or suspend the sentence of any person convicted of
violating any of the provisions of NRS 453.3385, 453.339 or 453.3395 if he finds that the convicted
person rendered substantial assistance in the identification, arrest or conviction of any of his
accomplices, accessories, coconspirators or principals or of any other person involved in trafficking in a
controlled substance in violation of NRS 453.3385, 453.339 or 453.3395. The arresting agency must be
given an opportunity to be heard before the motion is granted. Upon good cause shown, the motion may
be heard in camera.
We note that several other states, as well as the federal system, have similar provisions.
5
Such statutes are
obviously intended to provide an incentive to drug-trafficking offenders to cooperate with law enforcement in
the investigation of other drug traffickers.
Parrish contends that the nature and amount of information he provided to the detectives, information which
did identify other drug traffickers, constituted substantial assistance within the meaning of NRS 453.3405(2).
Parrish further argues that the detectives' failure to follow up on the information he gave them, choosing
instead to prioritize other investigations over following up on Parrish's information, should not result in a
finding that Parrish had not rendered substantial assistance. Therefore, Parrish contends the district court
abused its discretion by failing to find that he rendered substantial assistance within the meaning of NRS
453.3405(2).
6

[Headnote 2]
We begin by noting that the district court is afforded wide discretion when sentencing a defendant. See
Randell v. State, 109 Nev. 5, 7-8, 846 P.2d 278, 280 (1993). As we have acknowledged, "'judges spend
much of their professional lives separating the wheat from the chaff and have extensive
experience in sentencing, along with the legal training necessary to determine an
appropriate sentence.'"
__________

5
See, e.g., U.S. Sentencing Commission, Guidelines Manual 5K1.1 (Nov. 1999); Fla. Stat. Ann.
893.135(4) (West 2000); Ga. Code Ann. 16-13-31(f)(2) (1998).

6
Parrish claims that the trial court abused its discretion by failing to find that Parrish had rendered substantial
assistance. However, as we have noted, we cannot determine from the record if the district judge did in fact
determine that Parrish had not rendered substantial assistance.
edged, judges spend much of their professional lives separating the wheat from the chaff and have extensive
experience in sentencing, along with the legal training necessary to determine an appropriate sentence.' Id.
(quoting People v. Mockel, 276 Cal. Rptr. 559, 563 (Ct. App. 1990)). We are also cognizant that in this case the
legislature has clearly vested the district court with discretion, by stating that the judge may reduce or suspend
the sentence . . . if he finds that the convicted person rendered substantial assistance. NRS 453.3405(2)
(emphasis added).
[Headnotes 3, 4]
Nevertheless, this discretion is not limitless. When imposing a sentence, a district court may not abuse its
discretion. See Martinez v. State, 114 Nev. 735, 737-38, 961 P.2d 143, 145 (1998). Therefore, on appeal, in the
absence of a showing of abuse of such discretion, we will not disturb the sentence. See Deveroux v. State, 96
Nev. 388, 390, 610 P.2d 722, 724 (1980).
In addition to the abuse of discretion standard, we are also mindful of our holding in Matos v. State, 110
Nev. 834, 878 P.2d 288 (1994). In Matos, the defendant, in an effort to reduce his sentence, offered to assist the
police pursuant to NRS 453.3405(2). See Matos, 110 Nev. at 836, 878 P.2d at 289. However, because Matos
had threatened to kill several members of the Consolidated Narcotics Unit, and had gone so far as to have a
contract put out on a former police informant, law enforcement officers refused to accept his assistance. Id.
Under the facts of Matos, we concluded that since the defendant clearly posed a danger to law enforcement
officers, those officers could legitimately reject his offer to render substantial assistance. Id. at 836-37, 878 P.2d
at 289. Furthermore, we observed that on appeal this court would imply findings of fact and conclusions of law
if the record clearly supports the district court's ruling. Id. Therefore, we held in Matos that even if the district
court erred in its technical interpretation of the statute, the district court did not err in concluding the defendant
had not rendered substantial assistance. Id.
Today's case does not overrule these sound principles. Rather, Parrish's situation does not present the case
where law enforcement officers legitimately rejected his offer to assist drug agents. On the contrary, Parrish was
approached by CNU officers after he was arrested and was asked if he was willing to provide substantial
assistance. Parrish was willing. CNU detectives testified that they were definitely interested in following up on
the information Parrish provided. One of the detectives further testified that he believed that the information
Parrish provided was reliable since two people on Parrish's list had been arrested for drug offenses
subsequent to, but not related to, Parrish's disclosure of their identities.
offenses subsequent to, but not related to, Parrish's disclosure of their identities. Therefore, unlike Matos, this is
not a case where detectives legitimately refused to work with the defendant. In contrast to Matos, detectives in
this case seemed quite willing to extract information from Parrish; they simply did not want to work personally
with and in close proximity to Parrish.
[Headnote 5]
Parrish correctly argues that nowhere in NRS 453.3405(2) is there a requirement that the police personally
work with a defendant who is attempting to provide substantial assistance. While police may legitimately refuse
to work closely with a defendant who, in the view of police officers, poses a danger to themselves or the public,
substantial assistance, pursuant to the terms of the statute, may be rendered in other ways. We understand the
detectives' unwillingness to utilize Parrish in a controlled buy operation after he engaged in a prolonged physical
struggle with law enforcement officers during his arrest and had, during the same incident, drawn a weapon on
those officers. However, it is clear in this case that the information Parrish provided could have been
investigated in a manner that did not personally involve Parrish. The officers themselves evaluated the
information positively and thought it was sound enough to warrant further investigation. Therefore, the district
court could have found that Parrish rendered substantial assistance even though the detectives refused to work
closely with Parrish.
7

What is so troubling about this case is the district court's apparent acceptance of CNU's policy concerning
substantial assistance. The CNU detectives testified that in their opinion only arrests, or as they put it,
information resulting in actual bodies and product, constituted substantial assistance. Because the district court
did not specifically address this interpretation and sentenced Parrish to the maximum sentence allowed, it seems
that the district court may have implicitly accepted CNU's policy as a correct statement of the law.
[Headnote 6]
CNU's policy clearly constitutes a misinterpretation of the statute. NRS 453.3405(2) plainly states that the
district court may find that the defendant rendered substantial assistance in the identification, arrest or
conviction of other drug traffickers. (Emphasis added.) A plain reading of the statute reveals that an arrest is
not a necessary prerequisite to a determination that a defendant has rendered substantial
assistance.
__________

7
From the record, it is unclear whether the police refused to work with Parrish due to the circumstances
surrounding his arrest, or whether a lack of time and resources simply prevented the officers from fully
investigating the information provided by Parrish. In any event, it is clear that Parrish did provide the police with
a large amount of apparently valuable information.
arrest is not a necessary prerequisite to a determination that a defendant has rendered substantial assistance.
While CNU is free to develop its own internal policy concerning when the agency, in exercising its opportunity
to be heard pursuant to NRS 453.3405(2), will recommend that the court reduce or suspend the sentence of an
offender, CNU is not free to represent to the court that substantial assistance has not been rendered simply
because their internal requirements have not been met.
[Headnote 7]
Furthermore, we take this opportunity to elaborate on the discretion with which district courts are vested
under NRS 453.3405(2). Under this statute, once an appropriate motion is made, the district court may
permissibly exercise its discretion in one of two ways. First, the district court may find that a defendant has not
rendered substantial assistance under the statute, and therefore is not eligible for a sentence reduction or
suspension. Second, even if the district court finds that a defendant has rendered substantial assistance in
accordance with NRS 453.3405(2), the district court is still free in its discretion to reduce or suspend the
sentence. The difficulty in this case is that we are unable to ascertain from the record why the district court
sentenced Parrish to the maximum sentence allowed.
Our holding today does not require law enforcement to work with every defendant who wishes to render
substantial assistance. Neither is law enforcement required to act on every piece of information provided to them
by a defendant attempting to render substantial assistance in an attempt to avoid an otherwise harsh, mandatory
sentence. Nor do we hold that substantial assistance is rendered as a matter of law whenever a defendant
provides law enforcement officers with information. The trial judge is always in the best position to evaluate the
sincerity, reliability, quality and value of a defendant's efforts to provide substantial assistance. However, a
judicial determination of whether or not substantial assistance has been rendered must be made by application of
the statutory requirements to the defendant's efforts. If the district court sets a higher standard than is statutorily
required for a finding of substantial assistance, the purpose of the statute is defeated. What is more, offenders
who might otherwise be willing to trade information for the possibility of leniency will not do so if the carrot of
leniency is illusory.
Those responsible for enforcing the laws of this state, and in turn the public, are benefited when defendants
choose to provide the police with information that leads to the identification, arrest or conviction of others
involved in the drug trade. When offenders perform substantial assistance, it would be unfair to provide no
relief under the statute to them unless an articulable reason exists not to reduce or
suspend the sentence.
no relief under the statute to them unless an articulable reason exists not to reduce or suspend the sentence.
[Headnote 8]
In this case, Parrish provided CNU with a considerable amount of information. The detectives were able to
independently corroborate some of that information. It is clear that this information did identify drug traffickers
known to law enforcement through its own resources. This enhances the possibility that the rest of the
information, if investigated, would have led to the identification, arrest or conviction of other drug traffickers.
While we are unwilling to hold as a matter of law that Parrish rendered substantial assistance, it is clear to us,
based on the nature and amount of information Parrish provided to law enforcement, that the district court could
have found that Parrish provided substantial assistance. As we stated in Matos, this court may imply factual
findings if the record clearly supports the lower court's ruling. Matos v. State, 110 Nev. 834, 836, 878 P.2d 288,
289 (1994). Here, we cannot say that the record clearly supports the district court's decision.
[Headnote 9]
Accordingly, we hold that when evidence is presented to the district court concerning whether or not a
defendant has rendered substantial assistance pursuant to NRS 453.3405(2), the district court is required to
expressly state its finding concerning whether or not substantial assistance has been provided. Because the
district court in this case made no such finding, and because the record does not clearly support a finding that
there had been no substantial assistance provided to law enforcement, we vacate Parrish's sentence. We cannot
determine from the record in this case whether the district court misinterpreted NRS 453.3405(2) since evidence
was presented which could support a finding that Parrish had provided substantial assistance. Based on the
foregoing, we affirm Parrish's judgment of conviction but vacate his sentence and remand this case for a new
sentencing hearing before a different district judge.
Shearing and Leavitt, JJ., concur.
____________
116 Nev. 993, 993 (2000) Rodriguez v. Rodriguez
GLENDA M. RODRIGUEZ, Appellant, v. ANTONIO RODRIGUEZ, Respondent.
No. 30223
November 30, 2000 13 P.3d 415
Appeal from a divorce decree denying alimony and establishing child support. Eighth Judicial District Court,
Clark County; Terrance P. Marren, Judge, Family Court Division.
Wife appealed from divorce decree entered in the district court denying her request for alimony. The
supreme court, Agosti, J., held that district court abused its discretion when it considered wife's alleged
extra-marital affair in determining that she was not entitled to an award of alimony.
Andrew S. Myers, Las Vegas, for Appellant.
Randall J. Roske, Las Vegas, for Respondent.
1. Divorce.
When considering an award of alimony in a divorce action, the court may not consider either party's misconduct or fault.
NRS 125.150(1).
2. Divorce.
When making a just and equitable alimony award in a divorce action, the trial court shall consider the following
guidelines: the financial condition of the parties; the nature and value of the parties' respective property; the contribution of
each to any property held by them as tenants by the entirety; the duration of the marriage; the husband's income, his earning
capacity, his age, health and ability to labor; and the wife's age, health, station and ability to earn a living. NRS 125.150(1).
3. Divorce.
Trial court abused its discretion in divorce action when it considered wife's extra-marital affair in determining that she
was not entitled to an award of alimony. Wife was a middle-aged woman with health problems, she was forced to survive on a
meager income after enjoying a comfortable lifestyle within a marriage of lengthy duration, it was not anticipated that wife
would ever be able to earn more money, and, in contrast, husband maintained the financial ability to continue to live
comfortably, and his financial security was assured due to his far superior earning power. NRS 125.150(1).
OPINION
In this appeal we are asked if marital misconduct may be considered in determining an award of
alimony.
Appellant Glenda M. Rodriguez and respondent Antonio Rodriguez were married on September 10, 1973.
Antonio filed for divorce on September 21, 1994. The matter proceeded to trial in January 1996. At the time of
trial, Antonio was the catering director for the Sands Hotel in Las Vegas, earning at least $75,000.00 a year.
Glenda was employed as a high school hall monitor for the Clark County School District. She earned $10.11 per
hour and worked thirty-five hours a week during the nine-month school year. Her annual income was
approximately $14,000.00.
The district court entered a minute order on August 8, 1996, indicating its decision. The court entered its
Findings of Fact, Conclusions of Law and Decree of Divorce on February 3, 1997. Despite the fact that Antonio
and Glenda had been married for over twenty-one years, and the fact that Antonio earned considerably more
than Glenda, the trial judge refused to award Glenda alimony.
The district court denied Glenda's request for alimony because she'd had an extra-marital affair, had initiated
the parties' separation by leaving the family to pursue the extra-marital relationship and had taken $10,000.00
from their adult son's personal injury settlement.
1
In making its decision the court also found significance in the
facts that Antonio had agreed to repay the money that had been taken from the son, that Antonio was to have
custody of the parties' sixteen-year-old minor daughter and that Glenda was employed. The court stated in the
Findings of Fact, Conclusions of Law and Decree of Divorce that
[w]hile neither party is without fault in this case (as evidenced by their conversion of [the son's] money),
the Court finds Defendant was more at fault for the divorce than Plaintiff by her abandonment of the
marital home and children and her admitted involvement in an extramarital relationship prior to the
separation of the parties.
We conclude that the district court clearly erred by considering Glenda's fault in deciding whether to award
her alimony.
The district court relied on dictum in Heim v. Heim, 104 Nev. 605, 763 P.2d 678 (1988), for the proposition
that marital misconduct or fault may be considered in determining an award of alimony. When we decided Heim,
NRS 125.150(1) read as follows:
1. In granting a divorce, the court:
(a) May award such alimony to the wife or to the husband, in a specified principal sum or as
specified periodic payments;
__________

1
The district court found that both Glenda and Antonio had wrongfully taken money from their son's
settlement.
in a specified principal sum or as specified periodic payments;
and
(b) Shall make such disposition of:
(1) The community property of the parties; and
(2) Any property placed in joint tenancy by the parties on or after July 1, 1979,
as appears just and equitable, having regard to the respective merits of the parties and to the condition in
which they will be left by the divorce, and to the party through whom the property was acquired, and to
the burdens, if any, imposed upon it, for the benefit of the children.
Heim, 104 Nev. at 607-08 n.2, 763 P.2d at 679 n.2. The Heim court construed the statute to mean that district
courts were authorized to award alimony and to divide property as appears just and equitable, having regard to
the respective merits of the parties and to the condition in which they will be left by the divorce. Id. At 608, 763
P.2d at 680. The dictum in Heim which inspired the trial judge to consider Glenda's marital misconduct and to
punish her by refusing her alimony request is as follows: [w]hen examining the merits' of the parties the courts
might look at the parties' good actions or good behavior or lack thereof in determining what either husband or
wife justly deserves. Id. at 610, 763 P.2d at 681. The Heim court's reference to merits was based upon its
view that the statutory language having regard to the respective merits of the parties applied to alimony
considerations. In a footnote, the Heim court recognized a potential conflict between the concept of a no-fault
divorce and the consideration of marital misconduct in the determination of alimony:
Although Nevada has made incompatibility a ground for divorce and has eliminated the fault concept
in establishing grounds for divorce, it has neglected to deal with the question of whether fault should play
a role in deciding questions relating to alimony.
Nevada is not alone in this regard; and when the question has been presented to the courts in other
states, some have held that in the absence of legislative change corresponding to the enactment of
no-fault grounds for divorce, fault should continue to be a factor in awarding alimony or property
distribution. Other courts have held that permitting fault to be considered in these situations would be
incompatible with the no-fault divorce statutes. Since this issue has not been raised at the trial court level,
we do not consider its application here; still, we note, without deciding the point, that the past relations
and conduct of the parties might be legitimately considered under the legislative direction that the courts
pay regard to the respective merits of the parties.
Id. at 610 n.6, 763 P.2d at 681 n.6. (citations omitted). Four years later, in Rutar v. Rutar, 108 Nev. 203, 206
n.2, 827 P.2d 829, 831 n.2 (1992), we stated that [w]e have not, and do not now express any opinion as to the
meaning of the term respective merits of the parties,' which by the express language of the statute must be
considered in all cases involving judicial awards of alimony and marital property distribution.
In 1993, the legislature resolved the potential conflict between the concept of a no-fault divorce on the one
hand and the consideration of marital misconduct on the other hand when determining an award of alimony or
when dividing community property. Along with other changes, the legislature simply deleted the phrase having
regard to the respective merits of the parties from NRS 125.150(1).
2
See 1993 Nev. Stat., ch. 135, 1, at 240.
With the 1993 amendment, NRS 125.150(1) reads as follows:
1. In granting a divorce, the court:
(a) May award such alimony to the wife or to the husband, in a specified principal sum or as specified
periodic payments, as appears just and equitable; and
(b) Shall, to the extent practicable, make an equal disposition of the community property of the
parties, except that the court may make an unequal disposition of the community property in such
proportions as it deems just if the court finds a compelling reason to do so and sets forth in writing the
reasons for making the unequal disposition.
3

Our examination of the legislative history of the 1993 amendment reveals that the legislature deleted the
noted language in direct response to this court's decisions which suggested that marital fault can be considered in
determining alimony and property distribution. See Hearing on A.B. 347 Before the Assembly Committee on
Judiciary, 67th Leg. (Nev., April 7, 1993); Hearing on A.B. 347 Before the Senate Committee on Judiciary, 67th
Leg. (Nev., April 30, 1993). The amendment reflects the legislature's intention that as a no-fault divorce state,
the fault or bad conduct of a party should not be considered when deciding the issues of alimony and community
property division. See id. The legislature also chose to separately address alimony and community property
division.
__________

2
Thus, at the time the district court adjudicated Glenda and Antonio's divorce, the statutory language upon
which the unfortunate dictum in Heim was based had been deleted from NRS 125.150. The Findings of Fact,
Conclusions of Law and Decree of Divorce do not reference NRS 125.150(1) in either its form before or after
the amendment. The Heim decision was the only legal authority cited in determining alimony.

3
The language of NRS 125.150(1) has not changed since 1993 and remains current. Amendments were made
to NRS 125.150 in 1995 and 1999 which did not change subsection (1).
division. This is significant because for the first time the legislature clarified that different considerations exist
for each. Alimony is to be awarded according to principles of what is just and equitable. Community property
is to be divided equally unless a specifically stated compelling reason exists for making an unequal division.
4

Since the legislative pronouncement of 1993, we have not considered the effect of the 1993 amendment as it
relates to alimony, but we have considered the amendment's effect on the division of community property and
debts. We first took the amendment into account in Lofgren v. Lofgren, 112 Nev. 1282, 926 P.2d 296 (1996),
where we recognized that financial misconduct may constitute the requisite compelling reason for making an
unequal division of community property. We specifically held that if community property is lost, expended or
destroyed through the intentional misconduct of one spouse, the court may consider such misconduct as a
compelling reason for making an unequal disposition of community property and may appropriately augment the
other spouse's share of the remaining community property. Id. at 1283, 926 P.2d at 297.
A year after Lofgren was decided, we decided the case of Wheeler v. Upton-Wheeler, 113 Nev. 1185, 946
P.2d 200 (1997). We concluded in Wheeler that the district court erred by relying on evidence of the husband's
spousal abuse as a basis for making an unequal division of the parties' community property. Id. At 1190, 946
P.2d at 203. We noted that by amending NRS 125.150(1) in 1993, the legislature sought to preserve the concept
of no-fault divorce in Nevada. See id. at 1189-90, 946 P.2d at 203. We also recognized the legislature's
determination that in divorce proceedings, testimony regarding the relative faults of the parties could have an
adverse effect on the children and could increase the expense of litigation. Id. at 1190, 946 P.2d at 203 (citing
Hearing on A.B. [3]47 Before the Senate Committee on Judiciary, 67th Leg. (Nev., May 10, 1993, and April 30,
1993)).
__________

4
The amendment also deleted from the statute the requirement that the court make such disposition of the
community property of the parties as appears just and equitable, having regard to the respective merits of the
parties and to the condition in which they will be left by the divorce, and to the party through whom the property
was acquired, and to the burdens, if any, imposed upon it, for the benefit of the children. 1993 Nev. Stat., ch.
135, 1, at 240. In its place, the legislature added the requirement that the court, to the extent practicable,
shall make an equal disposition of the parties' community property, except that the court may make an unequal
disposition of the community property in such proportions as it deems just if the court finds a compelling reason
to do so and sets forth in writing the reasons for making the unequal disposition. Id. The amendment clearly
requires an equal rather than equitable division of the community estate.
However, in Wheeler, we also recognized that sometimes marital misconduct results in adverse economic
consequences for one of the parties. 113 Nev. at 1190, 946 P.2d at 203. We determined that a district court may
consider evidence of the economic consequences of marital misconduct in determining whether an unequal
division of community property is warranted. See id.
As we noted in Heim, [a]limony is wholly a creature of statute. Id. at 607, 763 P.2d at 679. The legislature
has elected to distinguish the appropriate considerations for the division of community property from those
which exist for an award of alimony. The legislature has devised a scheme that permits the court to deviate from
the rule requiring an equal division of community property if a compelling reason exists for doing so. However,
the legislature has not seen fit to permit the court to withhold an otherwise just and equitable alimony award for
any similar reason.
[Headnote 1]
According to both the legislative history and the plain language of the statute, a judge is not permitted to
consider the fault or misconduct of either of the parties when considering an award of alimony. We hold that
when considering an award of alimony, the court may not consider either party's misconduct or fault. We
perceive no reason to engraft the misconduct resulting in an economic impact exception to the alimony portion
of the statute. We have previously determined in Wheeler that the relevance of fault or misconduct is limited to
instances where, because of its economic impact on one of the parties, fault or misconduct constitutes a
compelling reason to deviate from an equal division of the community estate.
[Headnote 2]
Moreover, an exception is unnecessary. Nevada has well-settled case law that provides guidelines for the trial
court to consider when making a just and equitable alimony award. Commonly referred to as the Buchanan
factors, these guidelines were enunciated over twenty-five years ago in Buchanan v. Buchanan, 90 Nev. 209,
523 P.2d 1 (1974). They include:
the financial condition of the parties; the nature and value of [the parties'] respective property; the
contribution of each to any property held by them as tenants by the entirety; the duration of the marriage;
the husband's income, his earning capacity, his age, health and ability to labor; and the wife's age, health,
station and ability to earn a living.
Id. at 215, 523 P.2d at 5. While we acknowledge the archaic tenor of the language, as well as the unnecessary
variation between the considerations articulated for the husband and the wife, we also note
with approval the commonsense approach that permeates these points.
considerations articulated for the husband and the wife, we also note with approval the commonsense approach
that permeates these points. And the durability of the factors over time is a testament to their viability.
So, for example, if one spouse commits repetitive acts of physical or mental abuse against the other, causing
a condition in the injured spouse which generates expense or affects that person's ability to work, the physical
and/or mental condition caused by the misconduct can be taken into account in two ways: first, as a compelling
reason to make an unequal distribution of property or second, without considering evidence of fault or
misconduct, the court in deciding alimony will, per Buchanan, take that spouse's physical and mental condition
into account when examining his or her financial condition, health and ability to work.
In Heim, we characterized the Buchanan guidelines as simply an inexhaustive list of . . . common sense
considerations. Heim, 104 Nev. at 608, 763 P.2d at 680. We reiterate today that the Buchanan factors are
indeed guidelines and that other factors conceivably could from time to time be relevant as well to the trial
court's decision on the question of alimony.
5
However, marital misconduct or fault will not be one of the
additional factors assisting the trial court in properly exercising its discretion according to just and equitable
principles. To allow otherwise is inimical to the statute's legislative history and plain meaning.
[Headnote 3]
In this case, the trial judge abused his discretion when he considered Glenda's extra-marital affair in
determining that she should not receive alimony. Given the gross disparity between the parties' incomes, Glenda
was obviously being punished for her affair. Alimony is not a sword to level the wrongdoer. Alimony is not a
prize to reward virtue. Alimony is financial support paid from one spouse to the other whenever justice and
equity require it. Alimony may not be awarded or denied in an arbitrary or uncontrolled abuse of discretion.
The Buchanan factors assist the trial court in exercising its discretion when considering an award. Applying
the Buchanan factors to this case inevitably compels the conclusion that the trial judge abused his discretion in
denying Glenda's request for alimony. The parties were married for twenty-one years when they separated, and
for twenty-three years when the decree was entered.
The divorce decree contains little information about the financial condition of the parties or their community
property or debts.
__________

5
The existence of specialized education or training or level of marketable skills attained by each spouse are
examples which come to mind.
The decree refers to a home as an item of community property which was sold. Apparently by the agreement of
the parties, Glenda was to receive $6,000.00 from Antonio for her interest in the home, plus interest at the legal
rate, all to be paid to Glenda, but in the form of partial payments at the rate of $250.00 per month until satisfied.
The trial judge granted Glenda an award of attorney's fees in the amount of $2,500.00 and allowed Antonio
to satisfy that obligation at the rate of $100.00 per month. The judge also ordered Glenda to pay Antonio
$277.00 a month for the support of the parties' minor daughter. The judge permitted Glenda to pay Antonio
$177.00 a month, which is the difference between the monthly child support she was required to pay and the
monthly pay-off for the attorney's fees he was required to pay.
No reference is made in either the decree or the record to any source of money for either party independent
of their earnings.
6
Antonio earns a comfortable annual income of $75,000.00 which is significantly larger than
Glenda's annual income of approximately $14,000.00. Glenda was forty-two years old and Antonio was
forty-three years old when the decree was entered. Antonio is healthy and quite able to work. Glenda is ill. The
trial judge acknowledged her condition and consequent limited ability to earn a living at the conclusion of trial,
stating:
Her illness. She has told me she is ill. We can see she is ill to a certain extent, but she also works. . . .
I am convinced that she has certain medical problems, but that those problems do not prohibit her from
working at least to the extent that she works. So I am presuming that she has the ability to earn the
money that she is making, no more, no less, but that she has that same capacity in the summer either at
that job or another job for purpose of what we will do with both parties.
(Emphasis added.) We conclude that Glenda did possess a meritorious claim for alimony as reference to the
Buchanan factors readily reveals. Glenda, a middle-aged woman with health problems, was forced to survive on
a meager income after enjoying a comfortable lifestyle within a marriage of lengthy duration. It is not anticipated
that she will ever be able to earn more. In contrast, Antonio maintains the financial ability to
continue to live comfortably.
__________

6
Antonio testified that he held approximately $10,000.00 in a 401k plan. A representative from the Culinary
Union Pension Office testified to the retirement benefits that Antonio had accrued through the time that he was a
member of that union. Although the trial judge, at the conclusion of the trial, stated orally that each of these were
community assets to be divided equally, they are not mentioned in the decree. Upon remand, the decree should
be amended to reflect the trial court's rulings, or Glenda will have no mechanism by which to enforce the court's
intended disposition of the funds.
trast, Antonio maintains the financial ability to continue to live comfortably. He has risen steadily to a
management position in the casino industry. There is no justice or equity in denying alimony to a woman who,
because of her physical condition, will likely never earn more than the small amount she now earns.
7
Glenda
has been impoverished as a result of the divorce, while Antonio's financial security is assured because of his far
superior earning power. The trial judge should have analyzed the merits of Glenda's request for alimony with
reference to these factors. The trial judge abused his discretion in failing to award alimony in a just and equitable
sum.
Therefore, we reverse the portion of the district court's divorce decree denying an award of alimony to
Glenda and remand this matter so that the district court may determine an amount of alimony that appears just
and equitable, without consideration of her extra-marital affair or other perceived fault or misconduct.
8

____________
116 Nev. 1001, 1001 (2000) Matter of Fine
In the Matter of THE HONORABLE FRANCESANN FINE, District Judge for the County of Clark,
State of Nevada.
THE HONORABLE FRANCESANN FINE, District Judge for the County of Clark, State of Nevada,
Appellant, v. NEVADA COMMISSION ON JUDICIAL DISCIPLINE, Respondent.
No. 33215
November 30, 2000 13 P.3d 400
Appeal from a decision to impose discipline and imposition of discipline upon a former family court judge
by the Nevada Commission on Judicial Discipline.
District court judge appealed from a decision of Commission on Judicial Discipline that removed her from
office for alleged willful misconduct. The supreme court held that: (1) ex parte communications on
substantive matters with court-appointed expert were not permitted under judicial canon
authorizing judge to communicate with court personnel;
__________

7
The trial judge did find that Glenda could earn more if she pursued summer employment with the Clark
County School District. Assuming she did so, she would realize an annual income of approximately $18,500.00.

8
On appeal, Glenda also contended that the district court miscalculated the amount of her child support
obligation. At oral argument, Antonio's counsel represented to this court that the daughter is now over eighteen
years of age and that Antonio is not seeking to collect child support arrearages. Therefore, this issue is moot.
communications on substantive matters with court-appointed expert were not permitted under judicial canon
authorizing judge to communicate with court personnel; (2) expert who was first approached, hired, and paid for
by party in child custody matter was not court personnel with whom judge could conduct even limited ex parte
communications; (3) evidence supported determination that judge engaged in nepotism and favoritism when she
appointed first cousin as mediator in child custody matter; (4) consideration of uncharged incidents of ex parte
communications did not violate due process; (5) bad faith is not synonymous with the willful misconduct that
may serve as basis under state constitution for removal of a judge, disapproving Goldman v. Nevada Comm'n on
Judicial Discipline, 108 Nev. 251, 830 P.2d 107 (1992); and (6) evidence supported decision to remove judge
from office.
Affirmed.
William B. Terry, Las Vegas, for Appellant.
Leonard I. Gang, General Counsel, and Frank J. Cremen, Special Prosecutor, Nevada Commission on
Judicial Discipline, Carson City, for Respondent.
1. Judges.
Although supreme court must defer to factual findings by Commission on Judicial Discipline, it is not bound by the
Commission's conclusions of law.
2. Judges.
District court rule authorizing submission to judge in chambers of a specialist's written assessment in a family division
matter did not authorize judge in two child custody matters to initiate ex parte communications with employee of district
court's Family Mediation and Assessment Center to develop information and testimony to be heard by judge in reaching
decisions in those cases. Such ex parte communications were expressly prohibited by canon of judicial conduct. Code of Jud.
Conduct, Canon 3B(7).
3. Judges.
Experts appointed pursuant to an order of a court for the purpose of providing information that a court may utilize in
rendering a decision are quasi-judicial personnel and thus can fall within definition of court personnel, for purposes of
judicial canon permitting judge to consult with court personnel whose function it is to aid judge in carrying out judge's
adjudicative responsibilities. Code of Jud. Conduct, Canon 3B(7)(c).
4. Judges.
Any ex parte communications between judges and court-appointed experts, under judicial canon permitting judge to
communicate with certain court personnel, should be limited to procedural or administrative matters. Matters involving the
merits or substance of a case must not be discussed outside the presence of the parties. Code of Jud. Conduct, Canon 3B(7)(c).
5. Trial.
Content of procedural or administrative communications between judges and court-appointed experts should be promptly
documented and forwarded to the parties so as to afford them an opportunity to respond to the court's actions. Code of Jud. Conduct,
Canon 3B(7)(c).
6. Judges.
Ex parte communications between judge and court-appointed expert, after which judge made decisions on disputed issues and
issued rulings in child custody matter, were not permitted under judicial canon authorizing judge to communicate with certain court
personnel. Code of Jud. Conduct, Canon 3B(7)(c).
7. Judges.
Expert who was first approached, hired, and paid for by one of the parties in child custody matter was not court personnel with
whom judge could conduct even limited ex parte communications pursuant to judicial canon. Code of Jud. Conduct, Canon 3B(7)(c).
8. Judges.
Ex parte communications that judge in child custody matters conducted with experts in order to decide disputed substantive
issues, rather than to resolve administrative matters, were not validated under judicial ethics code by judge's subsequent reports to the
parties that such discussions had occurred. Code of Jud. Conduct, Canon 3B(7)(c).
9. Judges.
Definition of a member of the judge's family contained in Nevada Code of Judicial Conduct was inapplicable in determining
whether judge had violated judicial canon prohibiting a judge from engaging in nepotism or favoritism when she appointed her first
cousin as mediator in child custody matter. Code of Jud. Conduct, Canon 3C(4).
10. Judges.
Evidence supported finding of Commission on Judicial Discipline that judge engaged in nepotism and favoritism, in violation of
judicial canon, when she appointed her first cousin as mediator in child custody matter, even though first cousin was also the only New
Mexico mediator known to the judge. Code of Jud. Conduct, Canon 3C(4).
11. Judges.
Judge improperly afforded special treatment to first cousin, whom she had appointed as mediator in child custody matter, by
issuing order to show cause when parties failed to pay first cousin for mediation services. Code of Jud. Conduct, Canon 3C(4).
12. Constitutional Law; Judges.
Consideration by Commission on Judicial Discipline of two uncharged incidents of ex parte communications between judge and
experts in child custody proceeding did not violate judge's right to due process in disciplinary proceeding, where incidents in question
were first raised by judge herself in effort to give complete picture of that case. U.S. Const. amend. 14; Code of Jud. Conduct, Canon
3B(7).
13. Judges.
Commission on Judicial Discipline was free to consider all the evidence received in disciplinary proceeding against judge,
including additional instances of uncharged ex parte communications that judge herself raised during testimony about charged
incidents, in determining whether judge had engaged in willful misconduct warranting her removal from office under state constitution.
Const. art. 6, 21(8)(a); Code of Jud. Conduct, Canon 3B(7).
14. Judges.
Any error by Commission on Judicial Discipline in considering two uncharged instances of ex parte communications by judge in
reaching decision to remove judge from her office for willful misconduct was harmless, where Commission would have reached same
decision regardless of that evidence. Const. art. 6, 21(8)(a); Code of Jud. Conduct, Canon 3B(7).
15. Judges.
Willful misconduct, as basis under state constitution for removing judge from office, occurs when the actor knows he or she is
violating a judicial canon or rule of professional conduct and acts contrary to that canon or rule in spite of such knowledge. Const. art.
6, 21(8)(a).
16. Judges.
Bad faith is not synonymous with the willful misconduct that may serve as basis under state constitution for removal of a judge,
disapproving Goldman v. Nevada Comm'n on Judicial Discipline, 108 Nev. 251, 830 P.2d 107 (1992).
17. Judges.
Decision of Commission on Judicial Discipline to remove district court judge from office for willful misconduct was supported by
evidence that judge engaged in numerous and repeated unauthorized ex parte communications in child custody matters with experts
appointed by her or retained by the parties, despite having already been disciplined for engaging in ex parte communications with other
district court judges, and that she engaged in favoritism and nepotism by appointing her first cousin as mediator in child custody
matter. Const. art. 6, 21(8)(a); Code of Jud. Conduct, Canons 2, 2A, 3B(7), 3C(4); Administrative and Procedural Rules for the
Nevada Commission on Judicial Discipline 11(3).
18. Judges.
Supreme court would decline, on appeal of decision of Commission on Judicial Discipline to remove district court judge from
office, to consider judge's argument that Commission did not sufficiently inform her of procedures for disciplinary hearing, where
judge failed to cite any legal authority in support of argument.
OPINION
Per Curiam:
In September 1998, the Nevada Commission on Judicial Discipline (the Commission) held a formal
hearing based on allegations that the Honorable Frances-Ann Fine (Judge Fine) violated various Canons
of the Nevada Code of Judicial Conduct (NCJC) and provisions of the Administrative and Procedural
Rules for the Nevada Commission on Judicial Discipline (ARJD). After the Commission determined that
Judge Fine had indeed violated both the Canons of NCJC and the provisions of ARJD, the Commission
disciplined Judge Fine by removing her from office.
For the reasons discussed herein, we conclude that clear and convincing evidence supports the Commission's
findings that Judge Fine violated ARJD 11(3) and Canons 2, 2A, 3B(7), and 3C(4).
1
We further conclude that
the Commission did not err in considering uncharged conduct committed by Judge Fine and that the
Commission's decision to remove Judge Fine from her office was supported by the record in this case.
FACTS
In 1998, the Commission received a complaint from Marshall S. Willick, an attorney in Las Vegas who had
appeared in numerous cases before Judge Fine. Willick's complaint asserted that Judge Fine had violated
various provisions of ARJD and NCJC. On June 17 and 18, 1998, the Commission conducted a confidential
probable cause hearing to determine whether there was a reasonable probability that the allegations against
Judge Fine had merit. Upon the concurrence of the majority of the Commission, the Commission found that
probable cause existed to establish that disciplinary action against Judge Fine could be warranted pending a
formal hearing.
On July 23, 1998, the special prosecutor for the Commission filed a formal statement of charges against
Judge Fine alleging that she had violated various Canons and provisions of NCJC and ARJD. Specifically, the
special prosecutor alleged: (1) in Count I, that Judge Fine had violated ARJD 11(3) and Canons 2A and 3B(7)
in March 1993 by conducting several ex parte communications with experts in McMonigle v. McMonigle, Case
No. D124619, a case pending before her; (2) in Count II, that Judge Fine had violated ARJD 11(3) and Canons
2, 2A, and 3B(7) in May and December 1996 by conducting several ex parte communications with experts
involved in Kinnard v. Kinnard, Case No. D186967, a case pending before her; (3) in Count III, that Judge
Fine had violated ARJD 11(3) and Canons 2, 2A, and 3C(4) in 1996 by appointing her first cousin as a
mediator in Kinnard, a case pending before her, without disclosing her relationship with the cousin and by later
scheduling an order to show cause hearing as to why the parties should not be held in contempt of court for
having failed to pay the cousin for her services; and (4) in Count IV, that Judge Fine had violated ARJD 11(3)
and Canons 2, 2A, and 3B(7) in March 1997 by conducting an ex parte communication with an expert
involved in Greisen v. Greisen, Case No. D19639S, a case pending before her.
__________

1
The provisions of the ARJD were enacted by this court prior to the 1998 amendments to the Nevada
Constitution. Article 6, Section 21(5) of the Nevada Constitution now vests the power of establishing the
grounds upon which a judge may be censured with the legislature while the Commission may only adopt rules
governing the conduct of its hearings or other procedural rules necessary to carry out its duties.
munication with an expert involved in Greisen v. Greisen, Case No. D196398, a case pending before her. On
July 27, 1998, Judge Fine filed her answer to the above charges by denying any violations of ARJD or NCJC.
On September 2 and 3, 1998, the Commission conducted a formal evidentiary hearing.
Count I: McMonigle
At the hearing,
2
the special prosecutor presented a minute order from McMonigle dated March 29, 1993,
that explicitly states that [o]n March 28, 1993, Stephanie Crowley, the therapist working with the minor child . .
. was contacted by the Court regarding her evaluation of the child conducted on Saturday, March 27, 1993. The
minute order then details the substantive conversation that occurred between Dr. Stephanie Crowley and Judge
Fine. The minute order suggests that Judge Fine conducted the ex parte contact with Dr. Crowley because the
need for this information is pertinent to today's telephone conference and will aid in an efficient determination of
this matter.
In addition, the same minute order provides that [o]n March 30, 1993, Jennifer Henry, the law clerk for
[Judge Fine] spoke to Stephanie Crowley, therapist. Again, the minute order details the substance of what Dr.
Crowley discussed with Judge Fine's law clerk.
Dr. Crowley testified that she did have a telephone conference with Judge Fine on March 28, 1993, and that
Mr. McMonigle hired her in late March 1993 to perform a psychological evaluation of his daughter. Eventually,
Dr. Crowley's evaluation became important in custody proceedings that were pending before Judge Fine.
William Sheldon, from the district court's Family Mediation and Assessment Center (FMAC), knew Dr.
Crowley professionally and contacted her to ask her to give a summary of her findings to Judge Fine. On
Sunday, March 28, 1993, Judge Fine called Dr. Crowley on the telephone at her home, and they had a
conversation about Dr. Crowley's observations of the minor child. Although the minute order dated March 23,
1993, suggests that Judge Fine ordered Dr. Crowley to perform an assessment on the minor child in McMonigle
before Mr. McMonigle contacted Dr. Crowley, Judge Fine testified that Mr. McMonigle had already approached
Dr. Crowley before Judge Fine ordered Dr. Crowley to perform an assessment of the child. Moreover, Dr.
Crowley expressly testified that Mr. McMonigle had hired her and had entered into a fee agreement with her.
__________

2
Without objection, the Commission admitted as exhibits the transcripts of the testimony of the witnesses
from the probable cause hearing. Accordingly, we will discuss testimony and evidence presented at both the
probable cause hearing and at the formal hearing.
The special prosecutor also presented a minute order dated June 8, 1993, which reflects that Judge Fine had a
conference in chambers to discuss whether the custody of the minor child should be changed. The minute order
shows that Judge Fine and Sheldon were present in chambers and that Dr. Crowley and Dr. Lewis Etcoff,
another psychologist involved in the case, participated by telephone. The minute order also expressly indicates
that no parties or their attorneys were present at this conference. Lastly, although no parties or their attorneys
were present, the minute order shows that Judge Fine made findings of fact based on the discussions with
Sheldon, Dr. Etcoff, and Dr. Crowley and that Judge Fine entered an order that physical custody of the minor
child should remain with the father and that the child must remain in Clark County.
Both Dr. Crowley and Sheldon testified that on June 8, 1993, a conference occurred with Judge Fine and
without the parties or their attorneys. Sheldon characterized the conference as extremely unusual.
Judge Fine testified that she did engage in ex parte communications with experts in McMonigle. However,
Judge Fine maintained that she took care to inform the parties of her discussions with Dr. Crowley by copying
the minute order dated March 29, 1993, to the attorneys in McMonigle.
Count II: Kinnard
At the hearing, the special prosecutor presented a minute order from Kinnard dated October 26, 1995,
which shows that Mrs. Kinnard was temporarily living in New Mexico. In an effort to mediate the continuing
disputes between the parties, Judge Fine recommended and appointed Faith Garfield, a mediator in New
Mexico, to attempt to mediate the differences between the parties. The minute order reflects that Judge Fine also
appointed Dr. Marc Caplan, a psychologist, to the case in order to perform evaluations on the parties involved.
The special prosecutor also presented a letter from Garfield to Mrs. Kinnard dated May 10, 1996. The letter
reflects that Garfield billed Mrs. Kinnard for a telephone conference that occurred in early May 1996 between
Garfield, Dr. Caplan, and Judge Fine. Although Willick testified that this telephone conference occurred before
his involvement in the case, there is no indication in the record that either party or their attorneys were informed
of this telephone conference.
Additionally, the special prosecutor presented evidence that Judge Fine met alone with Dr. Elizabeth Ritchitt,
another psychologist involved in the case, in chambers on December 5, 1996. Dr. Ritchitt testified that she
received a call from Judge Fine's office and was informed that a hearing would take place in a
few days in Kinnard and that there was a possibility that Judge Fine might change
custody of the minor child from the mother to the father.
office and was informed that a hearing would take place in a few days in Kinnard and that there was a possibility
that Judge Fine might change custody of the minor child from the mother to the father. Dr. Ritchitt was also told
that Judge Fine wanted her present at the hearing to assist the minor child with the transition if there indeed was
a change in custody.
Dr. Ritchitt also testified that at the hearing on December 5, 1996, Judge Fine asked her to watch the minor
child in Judge Fine's chambers while the hearing took place. Dr. Ritchitt stated that she did not discuss the case
with Judge Fine, but was eventually called to testify as a witness at the hearing and was unaware of who had
called her as a witness.
Count III: Kinnard
At the hearing, the special prosecutor presented evidence that during the proceedings in Kinnard Willick
discovered that Garfield and Judge Fine were first cousins. Willick testified that Judge Fine had failed to
disclose the relationship to the parties or their attorneys.
Judge Fine testified that Garfield is her first cousin, but that she had seen Garfield only three to four times in
the last ten years. By stipulation, the Commission admitted a statement by Garfield where she indicated that she
and Judge Fine had contact approximately twice in the last five years.
Additionally, Judge Fine testified that she did not disclose her relationship with Garfield because [i]t was a
professional decision; and in retrospect, I probably should have . . . . I did say she was a close personal friend
because I did notI didn'tdid not want them to know there was a relationship.
The special prosecutor also presented a minute order dated May 9, 1996, which shows that Judge Fine
subsequently ordered the parties in Kinnard to make arrangements to pay Garfield for her services as a mediator
or be held in contempt of court. Subsequently, Judge Fine set an order to show cause hearing sua sponte
regarding the parties' failure to pay Garfield. During the resulting hearing on June 3, 1996, either Judge Fine or
Garfield indicated that Garfield and Judge Fine had previous ex parte communications about Garfield not being
paid for her mediation services. Garfield, who participated in the hearing by telephone, stated that both parties
had arranged payment plans with her, but had failed to make payments.
Judge Fine testified that if she became aware that experts were not being paid for their services, it was her
common practice to issue an order to show cause to require the parties to explain why they had failed to pay the
experts. As examples, Judge Fine referred to minute orders from other cases where she confronted the same
problem of experts not being paid for their services.
the same problem of experts not being paid for their services. Judge Fine stated that Garfield did not receive any
special treatment or consideration because of their relationship.
Count IV: Greisen
At the hearing, the special prosecutor presented a minute order dated February 21, 1996, which shows that
in Greisen Judge Fine ordered Sheldon to perform an emergency evaluation to determine if it was in the minor
child's best interests to be away from the father. Sheldon testified that no other judge, except Judge Fine, had
him give an oral report in chambers regarding an assessment, without the parties or their attorneys present,
before then testifying about the same report in open court. Essentially, Judge Fine first wanted to receive
Sheldon's report in chambers before he testified to the same report in open court. Regarding the Greisen case,
Sheldon confirmed that Judge Fine did have him give her an oral report in chambers before he subsequently
testified about the report in court.
3

In addition, other employees of FMAC testified that it was not necessarily unusual to give an oral report for
an emergency assessment to a judge in chambers before then being available to testify in court. However, a
judge had to specifically request to receive an oral report in chambers before the employee testified. Moreover,
it was not FMAC's policy to first give an oral report to a judge in chambers.
Judge Fine conceded that she had met and had spoken with Sheldon in chambers before going to court in
Greisen. Judge Fine asserted that she did speak with Sheldon or other employees of FMAC in chambers and
before going to court not often, but sometimes. Judge Fine explained that in Greisen she spoke to Sheldon
only because she and Sheldon were very busy, she took care to summarize Sheldon's oral report on the record,
and that the parties questioned Sheldon about his report in open court.
On October 6, 1998, the Commission issued its findings of fact and conclusions of law. The Commission
found that all the counts had been proven by clear and convincing evidence, except for Count II.
4
Specifically,
the Commission found that Judge Fine had engaged in repeated ex parte communications as
alleged in Counts I and IV and had appointed her first cousin as a mediator as alleged in
Count III.
__________

3
Although the formal charges originally indicated that the ex parte meeting between Sheldon and Judge Fine
occurred on March 21, 1997, the Commission granted the special prosecutor's motion to amend the charges in
Count IV to reflect that the meeting actually occurred on February 21, 1996.

4
Regarding Count II, the Commission found that although Judge Fine did conduct ex parte communications
with Garfield, Dr. Caplan, and Dr. Ritchitt in Kinnard, clear and convincing evidence did not establish that
substantive matters were discussed during these communications. Therefore, the Commission concluded that
Judge Fine did not violate ARJD or the Canons as alleged in Count II.
engaged in repeated ex parte communications as alleged in Counts I and IV and had appointed her first cousin as
a mediator as alleged in Count III. Accordingly, based on its findings of fact, the Commission unanimously
concluded as a matter of law that Judge Fine had violated ARJD 11(3) and Canons 2, 2A, 3B(7), and 3C(4).
Additionally, the Commission discussed two additional instances of deplorable ex parte conduct [that] were
clearly and convincingly established by the evidence, although these instances were not included in the formal
statement of charges against Judge Fine.
5
First, in Kinnard, Judge Fine testified at the hearing that Dr. Caplan
called her at approximately 11 p.m. at her home sometime in November 1996. At first, Judge Fine testified that
no substantive matters in the Kinnard case were discussed. However, the Commission found that her later
testimony revealed that Judge Fine had told Dr. Caplan to put his concerns in a letter, but that Dr. Caplan
responded, I am afraid if I put it in a letter to the parties or their lawyers, that the mother will run. That's what
he did say.
Subsequently, Dr. Caplan did write a letter to Judge Fine detailing his concerns regarding the Kinnard case
and expressly stating that he leaves it to your discretion to determine how much, when and under what
conditions you will release this information to the attorneys. Judge Fine maintained that she did not read the
letter until she had a conference call with the attorneys involved in the Kinnard matter. Yet, the Commission
found that [t]he evidence clearly and convincingly establishes that after [Judge Fine] engaged in the telephone
conference with Dr. Caplan and after she received Dr. Caplan's letter, she set a hearing in this matter without
informing the attorneys as to the purpose of the hearing.
Indeed, the record makes clear that on June 25, 1996, Mr. And Mrs. Kinnard entered a divorce decree and
custody agreement where Mrs. Kinnard gained physical custody of their minor child. At the time Judge Fine set
a hearing date sua sponte, neither party in Kinnard currently had a motion pending before Judge Fine regarding
custody. Willick testified that on November 18, 1996, he received notice from the district court that Judge Fine
wanted to have a hearing the following day to consider changing custody from the mother to the father in
Kinnard. Although Judge Fine sent Willick a copy of the letter that Dr. Caplan had sent to her, Willick wrote a
letter to Judge Fine indicating that he did not request the hearing and was not given a reason as to
why the hearing had been set by Judge Fine or informed of the issues that were to be
discussed.
__________

5
Evidence regarding these incidents was not presented as a part of the special prosecutor's case, rather this
information was included by Judge Fine as a part of her explanation of exactly what took place in Kinnard and
why she felt her ex parte communications and subsequent actions were appropriate under the circumstances.
request the hearing and was not given a reason as to why the hearing had been set by Judge Fine or informed of
the issues that were to be discussed.
Moreover, the record indicates that Judge Fine then directed her office to contact Dr. Ritchitt to request her
presence at the hearing set by Judge Fine for the Kinnard case. Judge Fine's chambers informed Dr. Ritchitt that
Judge Fine was considering changing the custody of the minor child in Kinnard from the mother to the father.
Ultimately, the hearing took place on December 5, 1996. At the hearing, Judge Fine called Dr. Caplan as a
witness and questioned him. Dr. Caplan recited his concerns for the minor child, which essentially mirrored his
observations in his letter. Judge Fine then called Dr. Ritchitt to the stand and asked questions about her
observations of the minor child. Based on evidence presented at the hearing, Judge Fine ordered an immediate
change in custody of the minor child from the mother to the father. Mrs. Kinnard testified at Judge Fine's formal
hearing that Judge Fine's decision resulted in Mrs. Kinnard losing custody and nearly all contact with her son.
Second, also in Kinnard, the Commission found that the evidence clearly and convincingly established that
Judge Fine received a copy of a letter that Dr. Ritchitt sent to Mrs. Kinnard. Based on the letter and without
notifying any of the parties or their counsel, Judge Fine entered an order commanding that the plaintiff, Laura
Kinnard, shall have no contact with the parties [sic] minor child . . . unless a therapist is present to monitor their
conversations.
Therefore, the Commission determined that Judge Fine significantly altered important parental rights of the
mother without notice or a hearing. Although the Commission notes that Judge Fine attempted to justify her
actions by maintaining that the order was temporary, done in the best interest of the child, and done on an
emergency basis, the Commission rejected her assertions in light of the fact that Dr. Caplan's letter to Judge Fine
indicated that the matters discussed in his letter to Judge Fine did not constitute an emergency.
The two additional instances of misconduct in Kinnard contributed to the Commission's conclusion that
[Judge Fine's] conduct evidences a pattern of behavior which virtually eliminates the judicial process as
established in the State of Nevada and the United States of America. Accordingly, the Commission determined
that Judge Fine discarded her judicial capacity and became an advocate.
After entering its findings of fact and conclusions of law, the Commission subsequently met on October 15,
1998, to impose discipline on Judge Fine.
discipline on Judge Fine. At the hearing, the Commission posed questions to Judge Fine and permitted her the
opportunity to answer its questions. The Commission also heard arguments by Judge Fine's counsel. Eventually,
having considered Judge Fine's answers and the arguments of her counsel, and having already entered its
findings of fact and conclusions of law, the Commission took a recess and later returned to announce its
imposition of discipline.
The Commission decided to discipline Judge Fine by removing her from office as a district court judge. The
Commission stated in its decision that in imposing the most severe penalty available to it upon [Judge Fine], [it]
has determined that [Judge Fine's] conduct was willful in nature which is the burden imposed upon it by Article
6, Section 21(6)(a) of the Constitution of the State of Nevada.
Moreover, in reaching its decision, the Commission took into consideration its earlier decision in 1995 to
discipline Judge Fine for engaging in ex parte communications with two other family court judges. In the
previous case, the Commission found that Judge Fine had numerous ex parte contacts with two fellow Family
Court Judges in an attempt to influence their decision regarding a case in which she had served as counsel for
one of the parties.
The Commission stated that [i]n this case, Judge Fine has evidenced a continuing pattern of ex parte
contacts albeit with therapists, psychologists, and court personnel regarding the ultimate issues presented to her
for decision in the three cases set forth in the formal complaint. Therefore, the Commission noted that Judge
Fine in this case before the Commission, violated the same provision of the Nevada Code of Judicial Conduct
for which she was previously disciplined. Accordingly, [t]he Commission . . . concluded that it had no
alternative other than to remove Judge Fine from office.
6

DISCUSSION
Whether clear and convincing evidence supports the Commission's findings that Judge Fine violated ARJD
11(3) and Canons 2, 2A, 3B(7), and 3C(4)
Judge Fine argues that clear and convincing evidence does not support the Commission's findings that she
violated ARJD 11{3) and Canons 2,S 2A,9 3B{7),10 and 3C{4)11 in Counts I, III, and IV.
__________

6
Commissioner Michael R. Griffin, a district court judge for the First Judicial District, dissented from the
Commission's decision to remove Fine. Although he noted that the conduct of Judge Fine was well outside the
conduct expected from a judge and warrants severe discipline, Commissioner Griffin dissented because it is
[his] opinion that willful misconduct' as required by the Constitution involves a knowing and deliberate
violation of law or dishonesty.
11(3)
7
and Canons 2,
8
2A,
9
3B(7),
10
and 3C(4)
11
in Counts I, III, and IV. Specifically, Judge Fine
contends: (1) in Count I and Count IV, that Judge Fine's ex parte communications with Sheldon were sanctioned
by EDCR 5.70 and that Judge Fine's ex parte communications with Dr. Etcoff and Dr. Crowley were authorized
by Canon 3B(7)(c)
12
and Duff v. Lewis, 114 Nev. 564, 958 P.2d 82 (1998); and (2) in Count III, that Judge
Fine did not engage in nepotism or favoritism in appointing Garfield as a mediator in Kinnard and that Judge
Fine routinely issued orders to show cause when parties failed to pay experts for their services.
[Headnote 1]
[Nevada's] constitution confines the scope of appellate review of the commission's factual findings to a
determination of whether the evidence in the record as a whole provides clear and convincing support for the
commission's findings. Goldman v. Nevada Comm'n on Judicial Discipline, 108 Nev. 251, 267, 830 P.2d 107,
117-18 (1992). Although this court must defer to the Commission's factual findings, this court is not bound by
the Commission's conclusions of law. See id.; see also Matter of Varain, 114 Nev. 1271, 1276, 969 P.2d 305,
309 (1998).
[Headnote 2]
Judge Fine argues that her ex parte contacts with Sheldon from FMAC were authorized by EDCR 5.70. At
the time the contacts occurred, EDCR 5.70(e)
13
provided that [a] written assessment containing the
findings and recommendations of the specialist will be submitted to the judge who
ordered the services."
__________

7
ARJD 11(3) provides, in pertinent part, that the [g]rounds for discipline by censure, removal, or the other
forms of discipline provided in Rule 30 are . . . [a]ny acts or omissions in the performance of judicial or
administrative duties which contravene provisions of the Nevada Code of Judicial Conduct.

8
Canon 2 states that [a] judge shall avoid impropriety and the appearance of impropriety in all of the judge's
activities.

9
Canon 2A provides that [a] judge shall respect and comply with the law and shall act at all times in a
manner that promotes public confidence in the integrity and impartiality of the judiciary.

10
Canon 3B(7) states, in relevant part:
A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the
right to be heard according to law. A judge shall not initiate, permit, or consider ex parte
communications, or consider other communications made to the judge outside the presence of the parties
concerning a pending or impending proceeding . . . .

11
Canon 3C(4) provides, in pertinent part, that [a] judge shall avoid nepotism and favoritism when making
appointments.

12
Canon 3B(7)(c) states that [a] judge may consult with court personnel whose function is to aid the judge in
carrying out the judge's adjudicative responsibilities or with other judges.

13
In 1997, EDCR 5.70 was substantially rewritten to reflect that FMAC no longer performs court-ordered
assessments. Instead, FMAC now operates the
containing the findings and recommendations of the specialist will be submitted to the judge who ordered the
services. EDCR 5.70(h) required that [a]ny written assessment prepared by [FMAC] shall be delivered to the
judge in chambers. Judge Fine contends that because of time constraints, Sheldon delivered oral reports to
Judge Fine in chambers pursuant to EDCR 5.70(h).
We conclude that EDCR 5.70 does not operate as an exception to Canon 3B(7). Indeed, Canon 3B(7)
expressly provides that [a] judge shall not initiate, permit, or consider ex parte communications, or consider
other communications made to the judge outside the presence of the parties concerning a pending or impending
proceeding. (Emphasis added.) Here, in both McMonigle and Greisen, Judge Fine initiated and/or permitted ex
parte communications with Sheldon concerning substantive matters in cases currently pending before her. It is
true that Sheldon and other employees of FMAC testified that because of time constraints, they often gave oral
reports in open court regarding emergency assessments and that these reports were later reduced to a written
report pursuant to EDCR 5.70. However, we conclude that EDCR 5.70 does not justify Judge Fine's ex parte
contacts with Sheldon. There was sufficient evidence in both cases to support the Commission's conclusion that
Judge Fine was not simply receiving information from Sheldon; she was developing testimony and evidence to
be used by her in reaching a decision in those cases. This is outside the scope of EDCR 5.70.
14

Judge Fine next argues that Canon 3B(7)(c) and Duff sanctioned her ex parte contacts with Dr. Etcoff and
Dr. Crowley. Canon 3B(7)(c) provides that [a] judge may consult with court personnel whose function is to aid
the judge in carrying out the judge's adjudicative responsibilities or with other judges. However, NCJC does not
define court personnel except to say that it does not include attorneys in a proceeding before a judge. See
NCJC, Terminology. Nonetheless, Judge Fine argues that Dr. Etcoff and Dr. Crowley should be considered
court personnel under Duff.
In Duff, we confronted the issue of whether court-appointed professionals assisting the judge in evaluating
individuals involved in a legal action are entitled to absolute quasi-judicial immunity. Duff, 114 Nev. at 568,
958 P.2d at 85. After the Nevada State Board of Psychological Examiners reprimanded a psychologist involved
in Duff, Duff filed suit against the psychologist seeking damages for the psychologist's alleged negligence.
__________
district court's mandatory mediation program for child custody matters in Clark County. See EDCR 5.70.

14
Judge Fine did not assert that her communications with Sheldon fell within the exception delineated under
Canon 3B(7)(c). We therefore decline to address this issue.
In discussing whether court-appointed experts should be granted immunity, we noted that the psychologist in
Duff was serving as an arm of the court' and performed a function integral to the judicial process.' Id. at 570,
958 P.2d at 86 (quoting Seibel v. Kemble, 631 P.2d 173, 179 (Haw. 1981)). Should experts be exposed to
liability for performing quasi-judicial duties, we observed that it would deter experts from accepting court
appointments or could affect an expert's recommendations. Ultimately, we held that the psychologist was
entitled to absolute quasi-judicial immunity from Duff's suit because (1) at least to some extent, his evaluations
and recommendations aided the trial court in determining child custody, and (2) his services were performed
pursuant to a court order.' Id. at 571, 958 P.2d at 87 (quoting Lavit v. Superior Court, 839 P.2d 1141, 1146
(Ariz. Ct. App. 1992)).
[Headnote 3]
The Commission argues that Duff is distinguishable from the instant case because Duff involved issues of
quasi-judicial immunity and tort liability instead of the judicial Canons. While such a distinction can be made,
we conclude that the Duff analysis is applicable to the instant case. Experts appointed pursuant to an order of a
court for the purpose of providing information that a court may utilize in rendering a decision are an arm of the
court. They are quasi-judicial personnel and can fall within the concept of court personnel whose function is to
aid the judge in carrying out the judge's adjudicative responsibilities. However, not every communication
between a court-appointed expert and a judge is permissible under Canon 3B(7)(c).
The exception embodied in Canon 3B(7)(c) was designed to give a judge some flexibility in supervising
judicial employees in the performance of their duties. For example, a judge must necessarily engage in ex parte
communications with a law clerk in order to advise the law clerk on how to draft a disposition or research an
issue. It was not intended to permit a judge to circumvent other provisions of the Canons or become an advocate
for one of the parties. Thus a judge could not, under the auspices of communicating with court personnel,
instruct a law clerk to independently gather evidence in support of a party's position.
[Headnotes 4, 5]
Because court-appointed experts are court personnel under the Canons for a limited purpose, the restrictions
governing ex parte communications should be more severe than those which may apply to general court
employees. Any ex parte communications with court-appointed experts should be limited to procedural or
administrative matters. Matters involving the merits or substance of a case must not be discussed
outside the presence of the parties.
of a case must not be discussed outside the presence of the parties. Moreover, the content of procedural or
administrative communications should be promptly documented and forwarded to the parties so as to afford
them an opportunity to respond to the court's actions.
[Headnote 6]
In this case, the Commission concluded that the communications between Judge Fine and Dr. Etcoff involved
matters of substance. Indeed, after a conference involving Dr. Etcoff, Judge Fine made decisions on disputed
issues and issued rulings in the McMonigle case. Moreover, the Commission concluded that Judge Fine's actions
amounted to advocacy upon behalf of the children. This is not the type of communication permitted under Canon
3B(7)(c).
[Headnote 7]
As to Dr. Crowley, the record considered by the Commission indicates that Dr. Crowley was not acting as an
arm of the court. The record specifically shows that Dr. Crowley was first approached, hired, and paid for by
Mr. McMonigle. Thus Dr. Crowley cannot be court personnel as contemplated by the Canons. Therefore, we
conclude that neither our decision in Duff nor Canon 3B(7)(c) authorizes Judge Fine's ex parte communications
with Dr. Etcoff or Dr. Crowley.
[Headnote 8]
Judge Fine emphasizes that she took care in informing the parties of her ex parte discussions with Sheldon,
Dr. Etcoff, and Dr. Crowley after they occurred. In making the argument that she kept the parties apprised of her
ex parte contacts, Judge Fine appears to rely on Canon 3B(7)(a) as support for her position. Judge Fine contends
that by informing the parties of her ex parte communications, she was complying with the Canons or that her
violations were inadvertent. However, Canon 3B(7)(a) provides that ex parte communications for scheduling,
administrative matters, or emergencies that do not deal with substantive matters are permitted if the judge
believes that no party would gain a procedural or tactical advantage and the judge promptly notifies all the
parties of the ex parte communication. See Canon 3B(7)(a). Because Judge Fine engaged in ex parte
communications regarding substantive matters, we conclude that Canon 3B(7)(a) provides no support to Judge
Fine's arguments.
15
__________
15
Without citing to the record, Judge Fine also argues that the parties in McMonigle granted her permission to
speak with Dr. Crowley on March 28, 1993. We conclude that after a careful review of the entire record on
appeal, the record belies Judge Fine's assertion. During the formal hearing, Judge Fine initially testified on direct
examination that the parties stipulated to her
As noted above, the Commission unanimously concluded that Judge Fine violated Canons 2A and 3B(7) in
Count I and Canons 2, 2A, and 3B(7) in Count IV, both of which constituted grounds for removal under ARJD
11(3). Based on the foregoing, we conclude that clear and convincing evidence supports the Commission's
findings that Judge Fine engaged in numerous and repeated ex parte communications as detailed in Counts I and
IV.
As to Count III, although Judge Fine concedes that she appointed her first cousin as a mediator in Kinnard,
Judge Fine next argues that she did not engage in nepotism or favoritism in making the appointment. Judge Fine
urges this court to utilize the definition of a member of the judge's family as used in NCJC in determining
whether Judge Fine violated Canons 2, 2A, and 3C(4). NCJC defines a member of the judge's family as a
spouse, child, grandchild, parent, grandparent or other relative or person with whom the judge maintains a close
familial relationship. NCJC, Terminology. Judge Fine contends that Garfield should not be considered a
member of her family within the meaning of NCJC because Judge Fine and Garfield did not have a close
relationship and rarely saw each other.
[Headnote 9]
Because Canon 3C(4) does not reference a member of the judge's family, we conclude that the definition of
a member of the judge's family as used in NCJC is inapplicable to this case. A member of the judge's family
is only referenced in Canons 4D(3), 4E, and 4G, all of which involve a judge's participation in the business or
legal affairs of members of his/her family. Accordingly, we conclude that looking to whether Garfield fits within
the definition of a member of Judge Fine's family is not helpful to a determination of the ultimate question in this
case. Black's Law Dictionary defines nepotism as a [b]estowal of patronage by public officers in appointing
others to positions by reason of blood or marital relationship to appointing authority. Black's Law Dictionary
1039 (6th ed. 1990). Black's Law Dictionary also defines favoritism as [i]nvidious preference and selection
based on friendship and factors other than merit. Id. at 609.
Judge Fine asserts that Garfield was the only mediator known to her in New Mexico and that the parties
suggested no alternative mediator. Moreover, Judge Fine suggests that the mere fact that the only known
mediator in New Mexico happened to be a relative does not warrant the conclusion that she
engaged in nepotism or favoritism.
__________
receiving an oral report from Dr. Crowley. However, on cross-examination, Judge Fine admitted that her
recollection was incorrect and that she did not have permission from the parties in McMonigle to have an ex
parte discussion with Dr. Crowley.
relative does not warrant the conclusion that she engaged in nepotism or favoritism.
[Headnote 10]
After reviewing the record on appeal, we conclude that there is clear and convincing evidence to support the
Commission's findings of fact with respect to the issues of nepotism and favoritism. The Commission concluded
that by appointing her first cousin as a mediator in Kinnard, Judge Fine did engage in nepotism because she
bestowed patronage on Garfield based on their familial relationship. Although it is true that Garfield happened to
be both a family member and the only New Mexico mediator known to Judge Fine, she made the appointment, at
least in part, due to her relationship with Garfield.
The record also supports the Commission's conclusion that Judge Fine committed favoritism by appointing
Garfield because, again, she selected Garfield based, at least in part, on their relationship. No party has alleged
that Garfield was in any way unqualified to act as a mediator. However, because of the relationship between
Garfield and Judge Fine, the Commission unanimously concluded that Judge Fine violated Canons 2, 2A, and
3C(4) in Count III, which constituted grounds for removal under ARJD 11(3). Accordingly, we again conclude
that a review of the record reveals clear and convincing evidence to support the Commission's findings that
Judge Fine improperly appointed her first cousin as a mediator as detailed in Count III.
[Headnote 11]
Judge Fine also argues that she routinely issued orders to show cause when parties failed to pay experts for
their services. Accordingly, she contends that she did not afford Garfield any special treatment or consideration
in Kinnard.
The record on appeal includes numerous letters from Dr. Ritchitt to Judge Fine indicating that Dr. Ritchitt
had not been paid in several unrelated cases. Most of the resulting minute orders in those cases show that Judge
Fine merely discussed the non-payment of Dr. Ritchitt with the parties in court. However, the minute orders in
two cases indicate that Judge Fine threatened that if Dr. Ritchitt was not paid, she would incarcerate the party
responsible for the non-payment.
We conclude that the minute orders do not necessarily evidence a pattern of Judge Fine setting orders to
show cause when parties failed to pay experts. Certainly, these two incidents show that Judge Fine threatened
parties with incarceration for failing to pay experts. Yet, the instant matter involves Judge Fine setting orders to
show cause, not threatening to incarcerate parties who fail to pay an expert. Accordingly, although Judge Fine
asserts that she routinely issued orders to show cause when parties failed to pay experts, we
conclude that the correspondence between Dr. Ritchitt and Judge Fine, as well as the
minute orders, fail to support Judge Fine's testimony.
routinely issued orders to show cause when parties failed to pay experts, we conclude that the correspondence
between Dr. Ritchitt and Judge Fine, as well as the minute orders, fail to support Judge Fine's testimony.
Accordingly, we conclude that clear and convincing evidence supports the Commission's findings that Judge
Fine improperly issued the orders to show cause as detailed in Count III.
Whether the Commission erred by considering uncharged conduct committed by Judge Fine
[Headnote 12]
Judge Fine argues that the Commission erred by considering the two additional instances of misconduct
involving Dr. Caplan and Dr. Ritchitt in Kinnard. Because these two additional instances were not included in
the formal charges against her, Judge Fine asserts that she was denied due process when the Commission found
that her actions regarding these incidents also constituted a violation of the Canons.
Having already made and adopted its findings of fact and conclusions of law regarding Counts I, III, and IV,
the Commission felt it was appropriate to set forth in some detail the reasoning underlying its Decision.
Accordingly, the Commission detailed the specific reasons why it found that clear and convincing evidence did
establish that Judge Fine violated various Canons in Counts I, III, and IV, but did not violate the Canons as
alleged in Count II. In this context, the Commission discussed the Caplan and Ritchitt incidents, finding that
two additional instances of deplorable ex parte conduct were clearly and convincingly established by the
evidence.
As noted above, the first incident involved Judge Fine engaging in ex parte communications with Dr. Caplan
in the Kinnard case. Upon receiving a letter from Dr. Caplan, Judge Fine sua sponte set a hearing regarding the
minor child's custody without first informing the parties of the reasons for the hearing and without any motion
currently pending before the court. At the hearing, Judge Fine called witnesses to testify and eventually changed
custody from the mother to the father.
In the second incident, Judge Fine entered an order in Kinnard without notifying any of the parties or their
counsel. After an ex parte communication with Dr. Ritchitt, Judge Fine entered an order preventing Mrs.
Kinnard from having any contact with her child unless a therapist was present.
We conclude that Judge Fine was not denied due process in this case. The focus of Judge Fine's contention is
that she was denied due process by not being informed that she would have to defend against these two
additional instances of misconduct. Judge Fine argues that the Commission erred in considering
them because the Commission did not include these two incidents in their complaint and
she did not have adequate notice that the Commission would be considering them.
argues that the Commission erred in considering them because the Commission did not include these two
incidents in their complaint and she did not have adequate notice that the Commission would be considering
them.
[Headnote 13]
We conclude, however, that Judge Fine's argument is undermined by a careful review of the entire record on
appeal. Upon reviewing Judge Fine's testimony, it is clear the testimony regarding these additional conversations
with Dr. Caplan and Dr. Ritchitt was not solicited by the special prosecutor. The special prosecutor was
questioning Judge Fine about the incidents involving Dr. Caplan and Dr. Ritchitt which were contained in the
complaint. In response to those questions, Judge Fine also testified as to the two additional incidents in her effort
to give a complete picture of the Kinnard case and to explain that her actions were taken because she believed
the orders were necessary to protect the child. For example, on direct and cross-examination, Judge Fine
discussed in detail her conduct relating to receiving Dr. Caplan's letter and her subsequent actions in setting a
hearing based on the letter. Accordingly, we conclude that Judge Fine was not denied due process because once
she presented evidence regarding these incidents, the Commission was free to consider them in determining
whether or not Judge Fine made improper ex parte communications in the Kinnard case. In addition, the
Commission was free to consider all the evidence, including these additional instances of ex parte
communications, in making a determination on the issue of willful misconduct.
Finally, although the Commission certainly considered these two additional incidents by discussing them in
its findings of facts and conclusion of law, we conclude that the record does not support Judge Fine's contention
that the Commission relied primarily upon these two incidents in deciding to remove her from office. Indeed, a
simple review of the Commission's decision to remove Judge Fine reveals no references to these additional
incidents.
[Headnote 14]
Even if the Commission considered these incidents as additional charges, we conclude that the Commission
would have reached the same decision irrespective of whether or not it had considered these two incidents. As
mentioned above, substantial evidence was presented against Judge Fine. Accordingly, we conclude that if the
Commission did err by adding additional counts on the basis of such evidence, any error was harmless. See, e.g.,
In re Inquiry Concerning a Judge, 357 So. 2d 172 (1978) (holding that improper notice of hearing and
charges was harmless error).
ing that improper notice of hearing and charges was harmless error).
Whether the Commission's decision to remove Judge Fine from her office as a district court judge is warranted
by the record
Finally, Judge Fine argues that the Commission's decision to remove her from office is not warranted by the
record because she did not engage in willful misconduct. Judge Fine contends that the term willful
misconduct includes an element of bad faith or malice. As the Commission found that she acted with
good intentions, Judge Fine asserts she cannot be removed from office.
The Nevada Constitution requires that this court exercise [its] independent judgment regarding the
appropriate sanction warranted by factual findings properly adduced by the commission. Goldman v. Nevada
Comm'n on Judicial Discipline, 108 Nev. 251, 268, 830 P.2d 107, 118 (1992); see also Nev. Const. art. 6,
21(1). Moreover, under the Nevada Constitution, a judge cannot be removed from office except for willful
misconduct, willful or persistent failure to perform the duties of his office, or habitual intemperance. See Nev.
Const. art. 6, 21(8)(a).
16
Willful misconduct is a term of art, not easily defined. Willful is a word of many
meanings, its construction often being influenced by its context. Screws v. United States, 325 U.S. 91, 101
(1945) (citing Spies v. United States, 317 U.S. 492, 497 (1943)). As a general rule, the word denotes an act
which is intentional, or knowing, or voluntary, rather than accidental. United States v. Murdock, 290 U.S. 389,
394 (1933). Thus willful misconduct encompasses an intentional or knowing violation of the judicial Canons.
This court has previously considered this issue and has rejected Judge Fine's argument. See Goldman v.
Nevada Comm'n on Judicial Discipline, 108 Nev. 251, 294-95, 830 P.2d 107, 134-35 (1992). We have stated
that the relevant inquiry regarding willful misconduct is an inquiry into the intentional nature of the actor's
conduct and not whether the actor was acting out of malice or ill will. The fact that an actor may have acted with
the best of intentions does not relieve the actor of liability. See In re Rowe, 566 A.2d 1001, 1006 (Del. 1989)
(not requiring a finding of bad faith); In re Cieminski, 270 N.W.2d 321, 327 (N.D. 1978) (holding that for acts
to be labeled as willful misconduct, they must simply be a result of the performer's free will).
__________

16
Both Judge Fine and the Commission cite to Nevada Constitution Article 6, Section 21(6)(a). However, in
1998, the Nevada Constitution was amended and the willful misconduct provision is now found at Nevada
Constitution Article 6, Section 21(8)(a).
We are mindful that other jurisdictions have held that bad faith is a necessary element of willful misconduct.
See e.g., Gubler v. Commission on Judicial Performance, 688 P.2d 551 (Cal. 1984); In re Nowell, 237 S.E.2d
246 (N.C. 1977); Matter of Edens, 226 S.E.2d 5 (N.C. 1976); In re Worthen, 926 P.2d 853 (Utah 1996). We,
however, reject such a requirement in cases of intentional or knowing violations of the Canons.
[Headnotes 15, 16]
We conclude that willful misconduct occurs when the actor knows he or she is violating a judicial Canon or
rule of professional conduct and acts contrary to that Canon or rule in spite of such knowledge.
17

In the present case, the Commission concluded that Judge Fine's actions were willful in nature based on the
evidence presented. In reaching this conclusion, the Commission also took into account its earlier decision in
1995 to discipline Judge Fine for engaging in ex parte communications with two other family court judges. Thus,
the Commission noted that Judge Fine in this case before the Commission, violated the same provision of the
Nevada Code of Judicial Conduct for which she was previously disciplined.
[Headnote 17]
We conclude that the Commission's decision to remove Judge Fine from office was warranted in light of the
record on appeal. As the record makes clear, Judge Fine engaged in numerous and repeated ex parte
communications with experts retained by the parties or appointed by her. In McMonigle, Judge Fine willfully
and intentionally engaged in misconduct by initiating the ex parte contacts with Dr. Etcoff and with Dr. Crowley,
who had been hired by Mr. McMonigle. In Greisen, Judge Fine again acted willfully and intentionally by
initiating the contact with Sheldon in order to request and receive an oral report in chambers,
instead of waiting to receive the report on the record and in open court.
__________

17
Any language in Goldman that suggests bad faith is synonymous with willful misconduct is hereby
disapproved.
In 1999, subsequent to the events relevant to this case, the Nevada Legislature, pursuant to the authority
granted to the Legislature by the 1998 amendments to the Nevada Constitution, has defined willful misconduct
in NRS 1.4653(4)(b) to include, inter alia:
(2) A knowing or deliberate violation of one or more of the provisions of the Nevada Code of Judicial
Conduct;
(3) A knowing or deliberate act or omission in the performance of judicial or administrative duties that:
. . . .
(II) Tends to corrupt or impair the administration of Justice . . . .
Our ruling today is not based on this statute, as it was not in effect at the time of the incidents relevant to this
dispute.
order to request and receive an oral report in chambers, instead of waiting to receive the report on the record and
in open court. This contact, together with Sheldon's presence during the ex parte communications in McMonigle,
supports the Commission's conclusion that Judge Fine did not simply receive a report from Sheldon, but instead
discussed substantive matters as an advocate for a particular position. Furthermore, in Kinnard, Judge Fine
willfully and intentionally engaged in misconduct by appointing Garfield, her first cousin, to the case and failed
to inform the parties of their relationship.
[Headnote 18]
Judge Fine engaged in these actions after already having been disciplined once under Canon 3 for engaging
in ex parte communications with other district court judges. Based on the overwhelming nature of the evidence
in this case and in light of Judge Fine's previous discipline for the same misconduct, we conclude that Judge
Fine's actions show she knowingly acted in derogation to the judicial Canons and, therefore, her actions
amounted to willful misconduct. Simply put, Judge Fine should have known better. Although Judge Fine
continually argues that her ex parte contacts were arguably with court personnel and were therefore not willful
and not done in bad faith, we conclude that her argument is belied by the overwhelming evidence in this case
and by the fact that she had already been disciplined for similar misconduct.
18

CONCLUSION
For the foregoing reasons, we conclude that clear and convincing evidence supports the Commission's
findings that Judge Fine violated ARJD 11(3) and Canons 2, 2A, 3B(7), and 3C(4), thereby justifying her
removal from office as a district court judge. We further conclude that the Commission did not err in
considering uncharged conduct committed by Judge Fine. Finally, we conclude that the Commission's
decision to remove Judge Fine from her office was warranted by the record in this case.
__________

18
Judge Fine also argues that the Commission's notice to appear on October 15, 1998, for the imposition of
discipline failed to sufficiently inform her of the procedures for the hearing. Specifically, Judge Fine contends
that if she had known the Commissioners would be permitted to question her, she would have sought to present
witnesses in mitigation of punishment. Because Judge Fine fails to cite any legal authority in support of her
position, we decline to consider Judge Fine's argument. See SIIS v. Buckley, 100 Nev. 376, 382, 682 P.2d
1387, 1390 (1984). Even if we chose to address her contention, the Commissioners only questioned Judge Fine
in an attempt to better understand her perspective regarding her role as a judge and to discern whether she had
learned anything from the proceedings. Although the notice to Judge Fine could have detailed the procedures for
the hearing with greater specificity, it appears from the record that the Commission took great care in making its
decision and acted cautiously in rendering its decision.
we conclude that the Commission's decision to remove Judge Fine from her office was warranted by the record
in this case. Accordingly, we affirm the decision of the Commission to remove Judge Fine from office in its
entirety.
19

____________
116 Nev. 1024, 1024 (2000) State Engineer v. Truckee-Carson Irrig.
R. MICHAEL TURNIPSEED, STATE ENGINEER, STATE OF NEVADA, DEPARTMENT OF
CONSERVATION AND NATURAL RESOURCES, DIVISION OF WATER RESOURCES; and
PYRAMID LAKE PAIUTE TRIBE OF INDIANS, Appellants, v. TRUCKEECARSON
IRRIGATION DISTRICT, CORKILL BROTHERS, INC., SIERRA PACIFIC POWER COMPANY,
CITY OF RENO, CITY OF SPARKS, and THE COUNTY OF WASHOE, Respondents.
No. 33945
PYRAMID LAKE PAIUTE TRIBE OF INDIANS, Petitioner, v. THE THIRD JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, in and for THE COUNTY OF CHURCHILL, and THE
HONORABLES ARCHIE E. BLAKE and DAVID A. HUFF, District Judges, Respondents, and
TRUCKEECARSON IRRIGATION DISTRICT, and CORKILL BROS., INC., Real Parties in
Interest.
No. 34134
November 30, 2000 13 P.3d 395
Appeal from a district court order denying appellants' motion for a change of venue (Docket No. 33945),
consolidated with a petition for a writ of mandamus challenging the district court's denial of petitioners'
peremptory challenge (Docket No. 34134). Third Judicial District Court, Churchill County; Archie E. Blake and
David A. Huff, Judges.
After corporation that held water rights in certain county and irrigation district filed petitions for judicial
review of state engineer's decision, denying their applications for appropriation of unappropriated waters of
certain river, Indian Tribe that intervened in action filed peremptory challenge to change judge assigned to case,
and state engineer filed demand and motion for change of venue.
__________

19
The Honorable A. William Maupin, Justice, voluntarily recused himself from participation in the decision
of this matter.
The Honorable Myron Leavitt, Justice, did not participate in the decision of this matter.
change of venue. The district court denied engineer's motion for change of venue, and denied Tribe's peremptory
challenge. Engineer appealed, and Tribe filed petition for writ of mandamus. The matters were consolidated. The
supreme court held that: (1) Tribe was not precluded from bringing peremptory challenge to change district
judge; (2) judicial review of engineer's decision was not an appeal for purposes of rule governing procedures
for changing a judge by peremptory challenge; (3) district court did not rule on a contested matter, so as to
preclude Tribe from filing a peremptory challenge against judge; and (4) Tribe did not have a plain, speedy, and
adequate remedy at law after district court erroneously failed to grant Tribe's peremptory challenge to change
judge in water appropriation case, as required for mandamus relief.
Vacated (Docket No. 33945); petition granted (Docket No. 34134).
Frankie Sue Del Papa, Attorney General, and Paul G. Taggart, Deputy Attorney General, Carson City,
for R. Michael Turnipseed, State Engineer, State of Nevada, Department of Conservation and Natural
Resources, Division of Water Resources.
Williams & Emm, Fallon, for Pyramid Lake Paiute Tribe of Indians.
Lyman F. McConnell, Fallon; McQuaid, Metzler, Bedford & Van Zandt, San Francisco, California, for
Truckee-Carson Irrigation District.
Woodburn & Wedge and Gordon H. DePaoli, Reno, for Sierra Pacific Power Company.
Richard A. Gammick, Washoe County District Attorney, and John B. Rhodes and George G. Campbell,
Deputy District Attorneys, Reno, for County of Washoe.
Mackedon & McCormick and Steven D. King, Fallon, for Corkill Brothers, Inc.
Patricia A. Lynch, City Attorney, and Susan Ball Rothe and Donald L. Christensen, Deputy City
Attorneys, Reno, for City of Reno and City of Sparks.
1. Judges.
Indian Tribe that successfully intervened in water appropriation case was not precluded from bringing peremptory
challenge to change district judge assigned to case, where judge did not rule on a contested matter or consider an appeal from
a lower court. SCR 48.1.
2. Mandamus.
Supreme court may issue a writ of mandamus to compel the performance of an act which the law requires as a duty resulting from
an office, trust or station, or to control an arbitrary or capricious exercise of discretion. NRS 34.160.
3. Mandamus.
Extraordinary relief is the appropriate remedy when the district court improperly grants or fails to grant a peremptory challenge to
change the judge assigned to the case. SCR 48.1.
4. Judges.
State engineer in water appropriation case was not a lower court within context of rule governing procedures for changing a
judge by peremptory challenge, and thus judicial review of engineer's decision was not an appeal for purposes of rule, though
engineer acted as exclusive trier of fact, and district court was required to give deference to engineer's decision. SCR 48.1.
5. Judges.
Administrative agencies are not lower courts for purposes of rule governing procedures for changing a judge by peremptory
challenge. NRS 3.223, 4.370, 5.050; SCR 48.1.
6. Judges.
District court on review from state engineer's decisions in water appropriation case did not rule on a contested matter, for
purposes of rule precluding a peremptory challenge against any judge who has made a ruling in a contested matter in the action, so as
to preclude Indian Tribe that successfully intervened in action from filing a peremptory challenge against judge. Engineer's decisions
and the resulting petitions for review brought by interested parties constituted distinct and separate actions. SCR 48.1.
7. Judges.
Rule governing procedures for changing a judge by peremptory challenge precludes a peremptory challenge against any judge who
has made any ruling on a contested matter in the action. SCR 48.1.
8. Judges.
Once a timely peremptory challenge to change a judge is filed, the challenged judge loses the power to do anything further in the
case except to transfer the action to another judge. SCR 48.1.
9. Mandamus.
Indian Tribe did not have a plain, speedy, and adequate remedy at law after district court erroneously failed to grant Tribe's
peremptory challenge to change judge in water appropriation case, as required for mandamus relief.
OPINION
Per Curiam:
These consolidated water appropriation cases present two issues of statutory construction in the context of
a motion for a peremptory challenge and a motion for a change of venue. Specifically, the appellants
and petitioner ask this court to interpret the words and the phrase "appealed from a
lower court" in SCR 4S.1 and the phrase "the matters affected" in NRS 533.450{1).
the appellants and petitioner ask this court to interpret the words and the phrase appealed from a lower court in
SCR 48.1 and the phrase the matters affected in NRS 533.450(1). For the reasons set forth herein, we
conclude that the district court erred in refusing to grant the Tribe's peremptory challenge; we therefore grant the
mandamus petition. As the district court lacked authority to act once the peremptory challenge was filed, we
vacate the district court's venue order and do not reach the merits of the appeal in Docket No. 33945.
FACTS
At a hearing on May 31, 1994, Michael Turnipseed, the State Engineer of the State of Nevada (the
Engineer) considered several applications to appropriate previously unappropriated waters of the Truckee
River. The applicant pool included the Truckee-Carson Irrigation District (the District) and the Pyramid
Lake Paiute Tribe of Indians (the Tribe).
Four days before the hearing, Corkill Brothers, Inc., a Nevada corporation holding water rights in
Churchill County, filed a motion to intervene in the proceedings as a real party in interest to the District's
application. At the hearing, the Engineer denied both Corkill's motion to intervene and the District's
application, and proceeded to consider the remaining applications. Consequently, on June 29, 1994, Corkill
filed a petition for judicial review in the Third Judicial District Court located in Churchill County, challenging
the Engineer's denial of Corkill's motion to intervene and requesting an order staying the Engineer's decision.
The next day, the District filed a petition for judicial review and stay in the Third Judicial District Court
challenging the Engineer's denial of the District's application.
On July 5, 1994, the district court entered an order staying the Engineer's decision. Soon thereafter, the
Engineer filed separate motions to vacate the adverse motions and to consolidate Corkill and the District's
petitions for judicial review. The district court issued an order on February 1, 1995, consolidating the petitions
for review, reversing the Engineer's denial of Corkill's motion to intervene, and remanding the Engineer's
denial of the District's application.
On reconsideration, the Engineer again denied the District's application on August 14, 1998. The District
again petitioned for review of the Engineer's decision on reconsideration in the Third Judicial District Court.
The petition was later removed to the U.S. District Court for the District of Nevada and later remanded back to
the Third Judicial District Court.
On November 24, 1998, the Engineer issued a final decision denying all but the Tribe's applications. On
December 17 and 18, 199S, the District and Corkill, respectively, filed petitions in the Third
Judicial District Court requesting judicial review and a stay of the Engineer's decision.
1998, the District and Corkill, respectively, filed petitions in the Third Judicial District Court requesting judicial
review and a stay of the Engineer's decision. The District considered the Third Judicial District to be the
appropriate venue for the action because the Engineer's respective grants and denials of the unappropriated water
would deprive the District of water it proposed to use for farming activities on the Newlands Reclamation
Project, situated within the Third Judicial District. The case was assigned to the Honorable Archie E. Blake.
The Tribe intervened as a real party in interest and on December 21, 1998, filed a peremptory challenge of
Judge Blake pursuant to SCR 48.1 in both the District and Corkill's actions.
1
The District and Corkill thereafter
filed motions to strike the challenge. On February 3, 1999, Judge Huff of the Third Judicial District granted the
motion to strike the peremptory challenge. Thereafter, the Tribe petitioned this court for a writ of mandamus
compelling the district court to grant its peremptory challenge.
On the same day that the Tribe filed its peremptory challenge, December 21, 1998, the Engineer filed a
demand and a motion for change of venue contending that venue was only proper in Washoe County because the
appropriation of the waters in dispute did not affect Churchill County. Corkill opposed the motion, arguing that
the Engineer had waived his right to challenge venue. The district court denied the Engineer's motion for change
of venue.
The Engineer now appeals the district court's amended order issued March 22, 1999, denying his motion to
change venue. This court consolidated the Tribe's petition for a writ of mandamus and the Engineer's appeal of
the district court's order denying the change of venue.
DISCUSSION
[Headnote 1]
The Tribe argues that it was entitled to a peremptory challenge of Judge Blake pursuant to SCR 48.1.
Having had its peremptory challenge stricken by Judge Huff below, the Tribe now seeks a writ of mandamus
compelling Judge Blake to relinquish the matter for reassignment.
[Headnotes 2, 3]
This court may issue a writ of mandamus to compel the performance of an act which the law requires as a
duty resulting from an office, trust or station, NRS 34.160, or to control an arbitrary or capricious exercise of
discretion. Panko v. District Court, 111 Nev. 1522, 1525, 90S P.2d 706, 70S {1995).
__________

1
The district court, specifically Judge Blake, consolidated Corkill and the District's petitions for review on
February 16, 1999.
Nev. 1522, 1525, 908 P.2d 706, 708 (1995). Extraordinary relief is the appropriate remedy when the district
court improperly grants or fails to grant a peremptory challenge under SCR 48.1. See id.; cf. State, Dep't Mtr.
Veh. v. Dist. Ct., 113 Nev. 1338, 1342-43, 948 P.2d 261, 263 (1997) (granting a petition for a writ of
prohibition to arrest the proceedings of the district court after it improperly struck a peremptory challenge). A
writ of mandamus may be issued only where there is not a plain, speedy and adequate remedy in the ordinary
course of the law. NRS 34.170.
SCR 48.1 provides a party in a civil action the right to a change of judge, stating in relevant part,
1. In any civil action pending in a district court, which has not been appealed from a lower court,
each side is entitled, as a matter of right, to one change of judge by peremptory challenge. . . .
5. A notice of peremptory challenge may not be filed against any judge who has made any ruling on
a contested matter or commenced hearing any contested matter in the action. . . .
(Emphasis added.)
The right to peremptory challenge promotes judicial fairness by allowing a party to disqualify a judge that it
believes is unfair or biased. See Smith v. District Court, 107 Nev. 674, 677, 818 P.2d 849, 852 (1991). The
Smith court recognized the inherent danger in allowing an unqualified right to peremptory challenges, explaining
that the limitations imposed in SCR 48.1 are designed to discourage judge shopping and dilatory tactics. Id.
The District contends that the Tribe was not entitled to a change of judge as a matter of right because the
Tribe's motion for peremptory challenge: (1) was filed in an action that had been appealed from a lower court;
and (2) was filed against a judge who had made a prior ruling on contested matters in this case. We consider
each contention in turn.
A. Appeal from a lower court
[Headnote 4]
The District contends that the office of the Engineer is a lower court because it acts as the exclusive trier of
fact in water appropriation cases. Indeed, the district court is required to give deference to the Engineer's
decision and only conducts a de novo review of legal conclusions. See State Engineer v. Morris, 107 Nev. 699,
701, 819 P.2d 203, 205 (1991) (holding that reviewing courts will review the Engineer's decision for substantial
evidence). Furthermore, NRS 533.450(1) describes the process for reviewing the Engineer's decision as
being "in the nature of an appeal."
reviewing the Engineer's decision as being in the nature of an appeal.
[Headnote 5]
Notwithstanding the foregoing, we conclude that administrative agencies, such as the office of the Engineer,
are not lower courts for purposes of SCR 48.1. First, we observe that lower courts are defined by statute and
include family courts, justices' courts, and municipal courts. See NRS 3.223, 4.370, 5.050. In contrast, the
Nevada statutes defining the courts of this state do not define the Engineer or any other administrative agency as
a lower court. See id. Moreover, the policy sustaining the right to peremptory challenge supports its allowance in
circumstances such as this, where a party seeks district-court review of an administrative agency's decision.
Specifically, the same concerns regarding bias and unfairness exist and, therefore, the parties should be allowed
to address such concerns through a peremptory challenge.
Accordingly, we conclude that the action before Judge Blake was not an appeal for purposes of SCR 48.1.
B. Ruling on a contested matter
[Headnote 6]
The District next contends that Judge Blake ruled on various contested matters in 1994 and 1995
2
and,
therefore, pursuant to SCR 48.1(5), the Tribe is not permitted to file a peremptory challenge against him. In so
arguing, the District asserts that, by virtue of the Tribe's status as a real party in interest in the District's
application before the Engineer, the Tribe was a de facto party to the following: Corkill's petition for review of
the Engineer's denial of Corkill's motion to intervene, the District's petition for review of the Engineer's denial
of the District's application, the Engineer's motion to consolidate the forgoing actions, and the District's
subsequent petition for review of the Engineer's decision upon reconsiderationwhich again denied the
District's application (collectively the ancillary proceedings).
[Headnote 7]
We observe, however, that SCR 48.1(5) precludes a peremptory challenge against any judge who has made
any ruling on a contested matter . . . in the action (emphasis added). Thus, before inquiring whether the district
court judge had ruled on a contested matter before the Tribe filed its peremptory challenge,
__________

2
The District asserts that Judge Blake ruled on the following issues in 1994 and 1995: (1) Corkill's motion to
intervene; (2) Corkill's petition for judicial review of and motion to stay the Engineer's decision denying its
application for water rights; (3) the District's petition for the same; (4) the Engineer's motion to consolidate
Corkill's and the District's petitions for review.
matter before the Tribe filed its peremptory challenge, we must first determine whether the proceedings spanning
from 1993 to 1998, when Corkill and the District petitioned for review of the Engineer's latest order, constitute
the same action. We conclude that the Engineer's various decisions and the resulting petitions to the district
court for review thereof constitute distinct and separate actions.
In so concluding, we first note that the statute allowing for review of the Engineer's orders states that [a]ny
person feeling himself aggrieved by any order or decision of the state engineer . . . may have the same reviewed
by a proceeding for that purpose in the proper district court. NRS 533.450(1) (emphasis added). Although the
Engineer is generally not required to dispose of individual applications piecemeal, as the Engineer has done in
this matter, and, although the district court may later consolidate related review actions, NRS 533.450 imposes
no requirement that decisions trickling out of the same applicant pool be consolidated or otherwise heard
together. Thus, NRS 533.450(1) allows separate actions to petition for review of the Engineer's decisions.
Furthermore, although the District argues that the Tribe participated in the ancillary proceedings, we find no
indication in the record that the Tribe actually participated or formally intervened in the ancillary proceedings
prior to 1998.
3

Our conclusion on this point finds further support in the fact that the Tribe's interest in the District's and
Corkill's petitions for review of the Engineer's decision changed dramatically when, upon the Engineer's ultimate
decision disposing of the remaining applications, the Tribe's status changed from applicant to victor. Prior to that
time, as one applicant among many, the Tribe could not reasonably have foreseen that its rights in a future action
reviewing the Engineer's ultimate decision could be foreclosed by the outcome of an ancillary proceeding. See
Moore v. District Court, 77 Nev. 357, 363, 364 P.2d 1073, 1077 (1961) (holding that an intervening party was
not precluded from filing an affidavit to disqualify a judge despite the fact that there had been an earlier motion
to set the cause for trial because the intervenors did not become parties to the action until their motion for
intervention was granted).
Moreover, although the ancillary proceedings related to the appropriation of the water in question, they
merely addressed the question of whether the District should be poured back into the applicant pool and did not
address the core question regarding which applicant was entitled to the water. Thus, the judicial review of the
Engineer's ultimate decision and the previous ancillary proceedings were fundamentally
different actions.
__________

3
For the reasons stated, the fact that the Tribe participated in the proceeding before the U.S. District Court in
the fall of 1998 does not affect our conclusion.
review of the Engineer's ultimate decision and the previous ancillary proceedings were fundamentally different
actions.
We conclude, therefore, that the district court did not rule on a contested matter or consider an appeal from a
lower court and that the Tribe's peremptory challenge was therefore not precluded by SCR 48.1(5). Accordingly,
we conclude that the district court erred in striking the Tribe's peremptory challenge. We thus grant the petition
for a writ of mandamus in Docket No. 34134.
[Headnote 8]
In Docket No. 33945, the parties raise various contentions regarding the propriety of Judge Blake's denial of
the Engineer's motion for change of venue. Once a timely challenge is filed under SCR 48.1, however, the
challenged judge loses the power to do anything further in the case except to transfer the action to another
judge. Whitehead v. Comm'n on Jud. Discipline, 111 Nev. 70, 161, 893 P.2d 866, 922 (1995) (quoting Sisson
v. Georgetta, 78 Nev. 176, 180, 370 P.2d 672, 674 (1962)). Because the Tribe's peremptory challenge should
have been granted, Judge Blake did not have authority to do anything further in the cases, and therefore, any
orders issued after the challenge are invalid. Accordingly, we do not address the parties' arguments regarding
venue, as any such analysis would constitute an advisory opinion. See Applebaum v. Applebaum, 97 Nev. 11,
12, 621 P.2d 1110, 1110 (1981) (This court will not render advisory opinions on moot or abstract questions.);
see also Nev. Const. art. 6 4.
CONCLUSION
[Headnote 9]
We conclude that the district court erred in failing to grant the Tribe's peremptory challenge and that the
Tribe does not have a plain, speedy, and adequate remedy at law to otherwise address the error. Accordingly,
in Docket No. 34134, we grant the Tribe's petition and direct the clerk of this court to issue a writ of mandamus
compelling the district court to vacate its order striking the peremptory challenge, reassign the matter to a
different judge, and to vacate all orders entered in this matter after the date on which the Tribe's peremptory
challenge was filed. With respect to Docket No. 33945, as Judge Blake lacked authority to rule on the motion
for change of venue, we vacate the district court's order denying the motion.
4

__________

4
The Honorable A. William Maupin, Justice, did not participate in the decision of this matter.
____________
116 Nev. 1033, 1033 (2000) Gepford v. Gepford
CHARLES JAY GEPFORD, Appellant, v. REBECCA DORIS GEPFORD, Respondent.
No. 34449
November 30, 2000 13 P.3d 47
Appeal from an order of the district court granting respondent's motion to modify the decree of divorce to
change custody of the minor children from appellant to respondent. Sixth Judicial District Court, Humboldt
County; Jerry V. Sullivan, Judge.
Ex-husband appealed an order of the district court granting ex-wife's motion to modify parties' divorce
decree to change custody of children from ex-husband to ex-wife. The supreme court, Young, J., held that trial
court abused its discretion in determining that children's welfare would be substantially enhanced by change of
custody from ex-husband to ex-wife.
Shearing, J., with whom Agosti and Maupin, JJ., agreed, dissented.
Kyle B. Swanson, Winnemucca, for Appellant.
Jack T. Bullock II, Winnemucca, for Respondent.
1. Divorce.
Trial court abused its discretion in determining that children's welfare would be substantially enhanced by change of
custody from ex-husband to ex-wife. Ex-husband's decision to leave child, who was nearly recovered from an illness, at home
alone on one occasion, was insufficient basis on which to premise change of custody, ex-husband was active and involved
father, and district court gave undue weight to ex-husband's non-compliance with statute requiring him to obtain ex-wife's
written consent to move children out-of-state. NRS 125C.200.
Once primary custody has been established, a court can consider changing custody only if: (1) the circumstances of the
parents have been materially altered, and (2) the child's welfare would be substantially enhanced by the change.
3. Divorce.
A district court's determination of child custody in a post-dissolution proceeding will not be disturbed unless there has
been a clear abuse of discretion. However, supreme court must also be satisfied that the district court's determination was
made for appropriate reasons.
Supreme court will not set aside the district court's factual determinations if they are supported by substantial evidence.
Although trial court may consider non-compliance with statute requiring custodial parent to obtain noncustodial parent's
written consent to move with a child out-of-state as a factor in determining whether a custody modification is
appropriate, this non-compliance is not determinative.
custody modification is appropriate, this non-compliance is not determinative. NRS 125C.200.
OPINION
By the Court, Young, J.:
Appellant Charles Jay Gepford (Charles) and respondent Rebecca Doris Gepford (Rebecca)
divorced after five years of marriage and after having two children. On October 11, 1991, Charles and
Rebecca entered into a divorce decree. Under the divorce decree, Charles and Rebecca shared joint legal
custody of the children while Charles received primary physical custody of the children.
On October 31, 1998, Charles and Rebecca were both laid off from work at Newmont Gold. Charles
quickly secured a new job at the Snake River Corrections Facility in Oregon. Charles also found a new
residence in Idaho, which is just across the state line from his new job. After obtaining new employment
in Oregon, Charles and Rebecca met to discuss Charles' moving to Idaho with the children. At that time,
Charles was not aware that he needed Rebecca's written consent to relocate to Idaho with the children,
because the need for written consent was not in the original divorce decree.
Although no written agreement was completed, Rebecca did verbally consent to Charles' moving to
Idaho with the children. Charles and Rebecca also discussed a new visitation schedule and lowering
Rebecca's child support payments. Charles and Rebecca both testified that they had laid the groundwork
for an agreement concerning visitation and child support, but still needed to discuss details of the
agreement. Accordingly, on November 14, 1998, Charles, the children, and Charles' long-time girlfriend,
Tanya, moved to Idaho.
1

After Charles and the children moved, Rebecca and Charles attempted to finalize a mutual agreement
regarding visitation and lowering Rebecca's child support payments. Unfortunately, communication
between Charles and Rebecca broke down, and they were unable to reach a final agreement.
During the second weekend in February 1999, Tanya and one of the children were in Oregon
attending a wedding. Charles remained at home with the other child, who was nearly recovered from
pneumonia.
__________

1
After moving to Idaho, Charles married Tanya, who is a homemaker and helps care for the children.
Rebecca has also remarried and is currently married to Jody Snare who works for Newmont Gold in
Indonesia.
from pneumonia. On February 15, 1999, Charles helped his pastor lay sheetrock for approximately six hours. As
Charles worked six blocks away, the recovering child stayed at home. During the previous evening, Charles
spoke with the child about going with him to lay sheetrock. The child stated that he wanted to stay home, and
Charles agreed. Charles showed the child how to call Charles' pager if the child needed to contact Charles, and
they practiced calling the pager. In fact, while Charles was away, the child did successfully call Charles on the
pager, and Charles immediately went home. Additionally, both children have attention deficit disorder and are
hyperactive, which requires them to take Ritalin three times a day. Charles was not worried about the child
missing a pill because, in Charles' opinion, the child was almost ten years old, mature, and diligent about taking
his pills.
While Charles was away, Rebecca called Charles' house and learned that the child was home alone. Rebecca
described the child as being excited and upset. Rebecca then called the police who conducted a welfare check.
The officer arrived and spoke with the child. The officer reported that the child was simply watching television
and doing a project on the floor. The officer's report stated that the child said he felt fine and that he was not
scared being home alone. The officer asked if the child wanted him to call anyone, and the child said that he did
not need anyone called because he had Charles' pager number. The officer's report also stated that the child had
food, blankets, and the house was warm. Consequently, the officer had the dispatcher inform Rebecca that the
child was fine.
Subsequently, on March 22, 1999, Rebecca filed a motion in district court seeking primary physical custody
of the children. As grounds for modifying custody, Rebecca asserted that, pursuant to NRS 125C.200, Charles
failed to obtain her written consent before moving to Idaho, that Charles left the one child at home alone, and
that Charles had denied visitation to Rebecca.
2

On May 28, 1999, the district court granted Rebecca's motion and awarded her primary physical custody of
the children. Specifically, the district court concluded, in relevant part:
2. That the Plaintiff has satisfied the first prong of Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664
(1968), by establishing that there has been a material change of circumstances of both parties hereto as
determined in this Court's findings;
__________

2
In her motion, Rebecca also asserted that Charles denied her telephone contact with her children and that the
children were infected with head lice while in Charles' care. However, we do not address these allegations on
appeal because the district court did not refer to them in its written order granting Rebecca's motion.
3. That the Plaintiff has satisfied the second prong of Murphy v. Murphy, supra, by establishing that
the welfare of the children will be substantially enhanced by changing custody from the Defendant to the
Plaintiff;
4. That the fact of Defendant leaving the nine (9) year old child home alone when he was recovering
from pneumonia and taking Ritalin for his Attention Deficit Disorder with Hyperactivity was not good
and showed poor judgment on Defendant's part;
5. That the fact that Defendant relocated the residence of the children without the written consent of
the Plaintiff or this Court's order, compels this Court to consider this as a factor in changing custody as
authorized by NRS 125A.350 [recodified as NRS 125C.200];
6. That the Plaintiff will be the better parent to allow the frequent and continuing association of the
children with the Defendant as authorized by NRS 125.480;
7. That the best interests of the children will be served by a change of custody from the Defendant to
the Plaintiff.
[Headnote 1]
On appeal, Charles argues that the district court abused its discretion by granting the motion to change
custody of the children to Rebecca. Specifically, Charles contends that the district court incorrectly concluded
that Rebecca satisfied the second prong of Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664 (1968). We agree.
[Headnotes 2-4]
Once primary custody has been established, a court can consider changing custody only if (1) the
circumstances of the parents have been materially altered; and (2) the child's welfare would be substantially
enhanced by the change.' McMonigle v. McMonigle, 110 Nev. 1407, 1408, 887 P.2d 742, 743 (1994)
(emphasis added) (quoting Murphy, 84 Nev. at 711, 447 P.2d at 665). A district court's determination of custody
will not be disturbed unless there has been a clear abuse of discretion. See Primm v. Lopes, 109 Nev. 502, 504,
853 P.2d 103, 104 (1993). However, this court must also be satisfied that the district court's determination was
made for appropriate reasons. See Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993). Moreover,
this court will not set aside the district court's factual determinations if they are supported by substantial
evidence. See Primm, 109 Nev. at 506, 853 P.2d at 105.
In the present case, we conclude that substantial evidence does not support the district court's conclusion that
the children's welfare would be substantially enhanced by a change of custody. In criticizing Charles' conduct,
the district court's order cites only to Charles leaving the child home alone on a single occasion.
to Charles leaving the child home alone on a single occasion. The record is clear that Charles believed the child
was mature enough to stay home alone for a few hours and was diligent about taking his medication on his own.
Indeed, the child suffered no harm from the incident, and after conducting a welfare check, the police found him
to be fine and in no need of assistance.
In Sims, we concluded that [i]t may not be ideal to leave a ten-year-old child with the flu at home alone for a
few hours (albeit with telephone access) but it hardly smacks of a reason to lose custody. Sims, 109 Nev. at
1149, 865 P.2d at 330. Accordingly, although it is probably not advisable to leave a child home alone who is
nearly recovered from an illness, we conclude that this lone incident is an insufficient basis on which to premise
a change of custody under the second prong of Murphy.
3

A further indication of the arbitrariness of the decision to give primary physical custody to Rebecca is the
fact that Charles appears to be an active and involved father. Until the district court's decision, Charles was the
primary physical custodian of the children since he and Rebecca divorced in 1991. Moreover, Charles' new job
is now more conducive to family life in that he now works only fourteen miles from home, works a normal nine
hour day, and is no longer on call. Further, a teacher, a school counselor, and the principal from the children's
former school in Winnemucca all testified that Charles was responsive and open to their suggestions regarding
the children's special educational needs. Indeed, the district court even noted in an earlier custody order that the
father has been the more stable, primary custodian of these boys. While we do not suggest that Rebecca is not
an equally caring and able parent, we simply conclude that the record belies the district court's conclusion that
Charles' parenting is deficient and that the children's welfare would be substantially enhanced by living with
Rebecca, which is the appropriate standard under the second prong of Murphy.
[Headnote 5]
Additionally, we also note that upon a careful review of the entire record on appeal, it appears that the
district court gave undue weight in its oral and written decision to Charles' non-compliance with NRS
125C.200.
__________

3
Although the dissent appears to suggest that the majority is improperly reevaluating the evidence in this
case, this court has explicitly held, as noted above, that it is our proper function to review the district court's
factual determinations and ensure that those determinations are supported by substantial evidence. See Primm,
109 Nev. at 506, 853 P.2d at 105. If they are not, the district court's decision is unsustainable as being an abuse
of discretion. See id. at 504, 853 P.2d at 104. Accordingly, our review of this case necessarily involves a
reassessment of the evidence presented below regardless of the dissent's suggestion otherwise.
compliance with NRS 125C.200.
4
Although the district court properly considered Charles' non-compliance
with NRS 125C.200 as a factor in its decision, this non-compliance is not determinative of the issues under
Murphy. This is especially true in light of the fact that Charles acted in good faith in initially securing Rebecca's
verbal consent to his moving with the children.
Indeed, Rebecca testified that she gave Charles her verbal consent and that the groundwork had been laid
concerning future visitation and lowering Rebecca's child support payments. In her motion for a change of
custody, Rebecca further evidenced her previous consent by stating that she no longer gives her consent to the
relocation to the State of Idaho. Unfortunately, Charles and Rebecca never reproduced their agreement in
writing. Nevertheless, by focusing more on Charles' non-compliance with NRS 125C.200, the district court
appears to have been more concerned with punishing Charles for his conduct instead of sufficiently considering
the best interests of the children and whether Rebecca satisfied the second prong of Murphy. See Sims, 109 Nev.
at 1149, 865 P.2d at 330 (This court has made it clear that a court may not use changes of custody as a sword to
punish parental misconduct; disobedience of court orders is punishable in other ways.).
5

For the foregoing reasons, we conclude that the district court abused its discretion in ruling that Rebecca
satisfied the second prong of Murphy. Accordingly, we reverse the district court's order and remand for further
proceedings consistent with this opinion, including a new custody hearing and specific findings regarding
whether giving primary physical custody to Rebecca would substantially enhance the children's
welfare as required under the second prong of Murphy.
__________

4
NRS 125C.200 provides:
If custody has been established and the custodial parent intends to move his residence to a place outside of this
state and to take the child with him, he must, as soon as possible and before the planned move, attempt to obtain
the written consent of the noncustodial parent to move the child from this state. If the noncustodial parent refuses
to give that consent, the custodial parent shall, before he leaves this state with the child, petition the court for
permission to move the child. The failure of a parent to comply with the provisions of this section may be
considered as a factor if a change of custody is requested by the noncustodial parent.

5
The dissent also states that Charles interfered with Rebecca's visitation. However, this is belied by a careful
review of the record. In fact, after Charles and the children moved to Idaho, the record shows that Rebecca spent
the Thanksgiving holiday with the children in Idaho. Because the Christmas holiday was Charles,' Rebecca
traveled to Indonesia to be with her husband from December 4, 1998, to January 15, 1999. After her return,
Rebecca spent three of the next four weekends with the children. She then returned to Indonesia from February
19, 1999, through March 1, 1999. When she returned from Indonesia, Rebecca spent two of the next three
weekends with the children before filing her motion for a change of custody on March 22, 1999.
would substantially enhance the children's welfare as required under the second prong of Murphy. See Murphy v.
Murphy, 84 Nev. 710, 711, 447 P.2d 664, 665 (1968). Upon remand, we note that under NRS 125C.200 Charles
is not barred from filing a petition for permission to move the children to another state in anticipation that the
district court could return primary physical custody of the children to him.
6

Rose, C. J., Leavitt and Becker, JJ., concur.
Shearing, J., with whom Agosti and Maupin, JJ., agree, dissenting:
The majority has made a decision contrary to the very law it cites. Primm v. Lopes, 109 Nev. 502, 853 P.2d
103 (1993), provides that this court will not set aside the district court's factual determinations if they are
supported by substantial evidence and will not disturb a district court's determination of custody absent a clear
abuse of discretion. Id. at 506 and 503, 853 P.2d at 105 and 104. Every one of the district court's findings was
supported by substantial evidence. Accordingly, I conclude that the district court did not abuse its discretion by
granting the motion to change custody, and would affirm the district court order.
The district court found that the mother would be the better parent to allow frequent and continuing
association of the children with the other parent. This is one of the most important factors in determining who
should have custody. Our legislature has specifically stated that the public policy of this state is that a major
factor in determining custody of children is which parent is more likely to allow the child to have frequent
associations and a continuing relationship with the noncustodial parent. See NRS 125.480(3)(a). There was
substantial evidence to support the district court's finding. There was testimony that the father had prevented not
only the mother's visitation with her children, but also her telephone contact with them.
The majority states that the district court gave undue weight to the father's removing the children from the
state without obtaining either the mother's written consent or a court determination. It is true that the mother
initially gave verbal consent to the move; however, it was on the understanding that they would fashion a liberal
visitation schedule for the mother. While the children were in Nevada, the mother had almost as much physical
contact with them as the father did. There was evidence that after the father took the children out of
state, the father not only would not agree to a liberal visitation schedule, but also would
not even agree to minimal contact.
__________

6
Charles also argues that the district court erred in concluding that it could not approve Charles' relocation
because Charles did not file a petition under NRS 125C.200 for permission to move before the hearing. In light
of our decision to remand the case to the district court, we find it unnecessary to consider this issue.
took the children out of state, the father not only would not agree to a liberal visitation schedule, but also would
not even agree to minimal contact. Recognizing that failure is not punishing the father for taking the children out
of state, but rather is furthering the policy that frequent contacts with both parents is in the best interest of the
child by giving primary physical custody to the parent most likely to foster relations with the other parent.
The majority states that the arbitrariness of the district court's decision is demonstrated by the fact that the
father appeared to be active and involved while he was in Nevada. The majority ignores the fact that the mother
was also an active and involved parent when the children were in Nevada. She also sought to be active and
involved while the children were in Idaho, but was frustrated by the father. Furthermore, despite the fact that the
mother still retained joint legal custody of the children, the evidence showed that the father was in the process of
having the children baptized in a new church, without any consultation with the mother. The majority implies
that any evidence supporting a conclusion that is not included in the district court's findings of fact cannot be
considered. That is not the law. The district court found that the best interests of the children would be
substantially enhanced by changing primary physical custody from the father to the mother. It is not necessary
for the judge to recite in the order each piece of evidence going into that decision, as long as there is substantial
evidence in the record to support the conclusion.
As the evidence described above shows, the majority mischaracterizes the evidence before the district court
by stating that the only criticism of the father's conduct was leaving one of the children home alone on a single
occasion. Even if that were true, the child who was left alone had asthma, a heart murmur, attention deficit
hyperactivity disorder and still was suffering from pneumonia. This impulsive child, who had no concept of
time, was left to medicate himself. Leaving such a child home alone in such circumstances is not so benign, even
if no physical harm resulted. However, this lack of judgment by the father was clearly only one factor considered
by the judge, and not the most important one.
There is no basis whatsoever for this court to reverse the judgment of the district court when the issue is so
fact specific. The district court heard the evidence, could weigh the credibility of the parties and made a
determination as the best interests of the children. This court is in no position to make such a judgment and it is
not this court's function to do so. There was substantial evidence to support the district court's decision. The
district court did not abuse its discretion. Accordingly, I dissent.
____________
116 Nev. 1041, 1041 (2000) Runion v. State
TRAVIS EARL RUNION, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32441
December 4, 2000 13 P.3d 52
Appeal from a judgment of conviction entered pursuant to a jury verdict of one count each of first-degree
murder with the use of a deadly weapon and attempted murder with the use of a deadly weapon. Eighth Judicial
District Court, Clark County; Joseph S. Pavlikowski, Judge.
Defendant was convicted in the district court of first-degree murder with the use of a deadly weapon and
attempted murder with the use of a deadly weapon, and he appealed. The supreme court held that: (1) defendant
was entitled to argue both actual and apparent danger theories of self-defense; (2) trial court incorrectly used
prior version of self-defense statute, as basis for self-defense instruction; (3) inclusion of superfluous language in
instructions addressing factual scenarios of self-defense irrelevant to case created potential for jury confusion;
(4) defendant's alleged statement to his girlfriend a few days after shooting that he fired in self-defense was not
admissible as a prior consistent statement; but (5) prosecutor's closing argument that defendant's self-defense
theory lacked corroboration, after successfully excluding girlfriend's corroborating testimony, together with
defense counsel's inability to argue apparent danger theory, denied defendant a fair trial.
Philip J. Kohn, Special Public Defender, and Laurel A. Duffy, Mark B. Bailus, and Lee Elizabeth
McMahon, Deputy Special Public Defenders, Clark County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, Christopher
J. Laurent, Chief Deputy District Attorney, and David T. Wall, Deputy District Attorney, Clark County,
for Respondent.
1. Statutes.
Criminal and penal statutes are to be strictly construed against the State.
2. Statutes.
Where a statute is ambiguous, the supreme court must construe its provisions to give meaning to all of the language and
should read each sentence, phrase, and word to render it meaningful within the context of the purpose of the legislation.
3. Statutes.
Intent of the legislature is the controlling factor in statutory interpretation.
4. Statutes.
There is a presumption that statutes are consistent with the common law.
5. Statutes.
Supreme court would presume that legislature approved of its interpretation of self-defense statute, allowing a right of self-defense
whether the person killing is confronted with danger that is real or merely apparent, as being consistent with the common law, where
legislature amended statute but did not change provision's language subsequent to court's interpretation. NRS 200.160.
6. Homicide.
While defendant's testimony supported actual danger theory of self-defense, evidence that shooting victim and other occupants of
vehicle were gang members, who made gang signs at defendant while carrying gun in engine compartment of vehicle, and former
juror's claim that victim had lied on witness stand supported apparent danger theory of self-defense. Thus, defendant was entitled to
argue both theories, and absence of specific instruction or defense argument on apparent danger could have misled jury into concluding
that defendant's actions were not justified, even if they found he mistakenly thought vehicle occupant had brandished a weapon. NRS
200.120, 200.130, 200.160, 200.200.
7. Homicide.
Trial court incorrectly used prior version of self-defense statute, rather than the version in effect at the time of alleged first-degree
murder and attempted murder, as basis for self-defense instruction. NRS 200.160.
8. Criminal Law.
Generally, the defense has the right to have the jury instructed on a theory of the case as disclosed by the evidence, no matter how
weak or incredible that evidence may be.
9. Criminal Law.
District court may refuse a jury instruction on the defendant's theory of the case which is substantially covered by other
instructions.
10. Homicide.
Inclusion of superfluous language in instructions addressing factual scenarios of self-defense irrelevant to murder prosecution
created potential for jury confusion. NRS 200.120, 200.130, 200.160, 200.200.
11. Homicide.
Because not all aspects of the self-defense statutes will be applicable in each case, district courts should cease merely quoting the
applicable statutes when instructing a jury on self-defense. NRS 200.120, 200.130, 200.160, 200.200.
12. Witnesses.
Prior consistent statement is not hearsay if: (1) the declarant testifies at trial, (2) the declarant is subject to cross-examination
concerning the statement, (3) the statement is consistent with the declarant's testimony at trial, and (4) the statement is offered to rebut
an express or implied charge of recent fabrication or improper influence or motive. NRS 51.035.
13. Witnesses.
To be admissible, prior consistent statement must have been made at a time when the declarant had no motive to fabricate. NRS
51.035.
14. Witnesses.
Defendant's alleged statement to his girlfriend a few days after the shooting that he fired in self-defense was not
admissible in murder prosecution as a prior consistent statement.
shooting that he fired in self-defense was not admissible in murder prosecution as a prior consistent statement. Although statement was
materially consistent with defendant's trial testimony that he shot in self-defense, it was not made at a time when defendant had no
motive to fabricate. NRS 51.035.
15. Criminal Law.
Allowing prosecutor to emphasize in closing arguments defendant's failure to present testimony of his girlfriend to corroborate
self-defense theory, which failure resulted from district court's ruling on prosecutor's hearsay objection to girlfriend's testimony,
resulted in an improper and prejudicial advantage to the State in murder prosecution.
16. Criminal Law.
Criminal conviction is not lightly overturned on the basis of a prosecutor's comments standing alone. However, if the issue of guilt
or innocence is close, prosecutorial misconduct may be considered prejudicial.
17. Criminal Law.
Prosecutor's comments during closing arguments that defendant's self-defense theory lacked corroboration, after successfully
excluding corroborating testimony of defendant's girlfriend, together with inability of defense counsel to argue apparent danger to jury
where a specific apparent danger instruction was requested and rejected, denied defendant a fair trial on murder and attempted murder
charges.
OPINION
Per Curiam:
Appellant Travis Earl Runion was convicted of first-degree murder with the use of a deadly weapon and
attempted murder with the use of a deadly weapon for shooting from the window of his vehicle into another
vehicle, killing one passenger and wounding another. Runion now appeals on several grounds. For the
reasons set forth below, we reverse his convictions for first-degree murder and attempted murder and remand
this matter to the district court for a new trial.
FACTS
In October of 1996, Runion was driving his friend, Darla Spomer, to her mother's home when he became
involved in an altercation with the occupants of a vehicle driven by Stephen Goldman near the intersection of
Pecos Drive and Stewart Avenue in Las Vegas. Runion fired a gun into the passenger side of Goldman's
vehicle, killing Josh Pendergraft and wounding Moses Companioni. Witnesses to the shooting contacted
police who, after interviewing witnesses and investigating the scene, arrested Runion for murder and
attempted murder.
Runion's trial began in February of 1998, at which time conflicting evidence concerning the shooting was
adduced.
Companioni testified that Runion was the initial aggressor. He claimed that Runion pulled up alongside
Goldman's vehicle and initiated an argument with Pendergraft. Companioni admitted that there was a gun in
Goldman's vehicle, but insisted that it was under the hood at all times that day and was never in the passenger
compartment.
Goldman testified that Pendergraft had flipped Runion off and that a verbal argument ensued between the
two at the intersection. Goldman further testified that he ducked when he heard shots coming from the direction
of Runion's car. Goldman claimed that the .9 mm weapon, located in the vehicle's engine compartment, to which
he later directed police, belonged to a friend, had been in the vehicle's engine compartment for some time, and
was never in the passenger compartment that day.
Shortly after Goldman's testimony, a juror informed the district court in chambers that he overheard Goldman
telling Companioni during a recess that I just lied my ass off in there. After being excused from jury service,
the juror testified about what he had overheard. On recall, Goldman denied making the statement and called the
juror a liar.
Spomer testified that as she and Runion were driving in his car, Runion told her that a person, later identified
as Pendergraft, had flipped him off. Largely in response to leading questions posed by the prosecutor, Spomer
stated that after an argument ensued at the intersection, she saw Runion pull out a gun, that she heard shots fired,
and that she put her head down when the shooting started and, as a result, could not be sure whether any shots
were fired from Goldman's vehicle. Spomer described the occupants of Goldman's car as bald, white guys who
looked like gang members and who were swearing at Runion. Several eyewitnesses testified that they heard
gunshots or observed flashes coming from Runion's vehicle but did not observe any gunfire coming from
Goldman's vehicle. However, one eyewitness testified that shots were fired from both vehicles and that she heard
two different gunshots.
Several police officers testified concerning their investigation, including the subsequent impounding of a
loaded .9 mm gun wrapped in a black and white bandana found in the engine compartment of Goldman's car as
well as a .38 caliber bullet projectile from the passenger side door of Goldman's car. The officers also found two
bullet holes in Goldman's vehicle, only one of which was fresh. Runion's weapon was never recovered and no
bullet holes were found in his vehicle. Ballistic tests concluded that cartridge casings and a bullet fragment
impounded at the scene were not fired from the .9 mm weapon found in Goldman's vehicle.
scene were not fired from the .9 mm weapon found in Goldman's vehicle.
Runion's theory of the case was self-defense. He testified that Pendergraft was the initial aggressor.
According to Runion, Pendergraft flipped him off, and then, as their vehicles idled at a red light, Pendergraft
yelled, cussed, and made gang signs at Runion. Runion testified that he was afraid for their safety, that he
thought Pendergraft was going to shoot them, and that he reached for his gun and shot in the direction of
Goldman's vehicle after he saw Pendergraft pull out a gun and point it at him.
Penny Helton, Runion's roommate and friend, testified for the defense about her conversation with him on
the night of the shooting. Helton testified that Runion acted very depressed, told her he had shot someone, and
cried for a long time. Runion sought testimony from Helton that, three to four days after the shooting, Runion
told her that he had fired in self-defense. The prosecution objected, and the district court ruled that the statement
was not a prior consistent statement because of an inconsistency in Runion and Helton's recollections as to when
Runion made the statement.
1
In closing argument, the prosecutor repeatedly commented on the discrepancy
between Runion and Helton's testimony and implied that Runion had never told Helton the shooting was in
self-defense.
The jury found Runion guilty of first-degree murder with the use of a deadly weapon and attempted murder
with the use of a deadly weapon. In addition to the consecutive terms of imprisonment for the attempted murder
with use of a deadly weapon, Runion was sentenced to two consecutive terms of life imprisonment with the
possibility of parole for first-degree murder with use of a deadly weapon.
DISCUSSION
I. Proposed jury instruction on apparent danger as a theory of self-defense
Runion contends that the district court erred in refusing to give the jury an instruction he submitted on
apparent danger, arguing that the instructions given to the jury regarding self-defense were confusing and
misleading. In particular, Runion points out that Instruction 26 misstated the law by including a statutory
definition of self-defense that was repealed in 1993, and that Instruction 25 and Instruction 27 include factual
scenarios of self-defense dissimilar to the facts in this case. We agree that the instructions given in this case
may have misled the jury. Additionally, Runion raises a legitimate concern regarding the
sufficiency of selfdefense instructions in cases where the evidence presents the issue of
apparent danger.
__________

1
Runion testified that he made the statement the night of the shooting.
raises a legitimate concern regarding the sufficiency of self-defense instructions in cases where the evidence
presents the issue of apparent danger.
At common law, an individual had a right to defend himself against apparent danger to the same extent as if
the danger had been real, provided he acted upon a reasonable apprehension of danger. Specifically, homicide
was justified where: (1) the defendant was not the aggressor in the encounter; (2) the defendant was confronted
with actual and immediate danger of unlawful bodily harm or he reasonably believed that there was immediate
danger of such a harm; and (3) the use of such force was necessary, in a proportionately reasonable amount, to
avoid this danger.
Nevada's self-defense statutory framework has existed for over seventy years. See NRS 200.120, 200.130,
200.160, and 200.200.
NRS 200.120 states that [j]ustifiable homicide is the killing of a human being in necessary self-defense.
NRS 200.120 (emphasis added). This language seems to state that homicide is justified only when a person is in
actual danger.
NRS 200.160 states that homicide is also justified when a person reasonably believes that he is about to be
seriously injured or killed and there is imminent danger of such design being accomplished. NRS 200.160(1)
(emphasis added).
Finally, NRS 200.200 states that if a person kills another in self-defense it must appear that: 1. The danger
was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily harm, the
killing of the other was absolutely necessary . . . . NRS 200.200(1) (emphasis added). While the phrase
absolutely necessary seems to indicate that self-defense is a justification for homicide where a person is
actually in imminent danger, the use of the word appear implies that self-defense may be a justification for
homicide in instances where a person reasonably believes that he is about to be seriously injured or killed but he
is mistaken in that belief.
[Headnotes 1-3]
It has long been recognized that criminal and penal statutes are to be strictly construed against the State. See
Sheriff v. Smith, 91 Nev. 729, 733, 542 P.2d 440, 443 (1975). Where a statute is ambiguous, this court must
construe its provisions to give meaning to all of the language and should read each sentence, phrase, and word to
render it meaningful within the context of the purpose of the legislation. See Bd. of County Comm'rs v. CMC of
Nevada, 99 Nev. 739, 744, 670 P.2d 102, 105 (1983); Sawyer v. District Court, 82 Nev. 53, 56, 410 P.2d 748,
750 (1966). The intent of the legislature is the controlling factor in statutory inter pretation.
pretation. See Cleghorn v. Hess, 109 Nev. 544, 548, 853 P.2d 1260, 1262 (1993).
[Headnotes 4, 5]
There is, however, a presumption that these statutes are consistent with the common law. See Ewing v.
Fahey, 86 Nev. 604, 607, 472 P.2d 347, 349-50 (1970) (statutory construction presumption that statutes are
consistent with common law); see also State v. Hamilton, 33 Nev. 418, 426, 111 P. 1026, 1029 (1910) (common
law prevails in Nevada except where abrogated). This court's decisional law with regard to self-defense has
construed Nevada's statutory scheme to be consistent with the common law, recognizing that self-defense is a
justification for homicide not only in instances of actual danger but also in instances of apparent danger. See
Culverson v. State, 106 Nev. 484, 797 P.2d 238 (1990) (recognizing apparent danger theory of self-defense).
2

At trial, Runion testified as follows on direct examination:
COUNSEL: Now, at some point after this you shot. Can you tell me what happened before you got
your gun out?
RUNION: After I yelled back at them, the driver of the other car became involved.
And then the next thing I saw was the passenger pulled out a gun and pointed it in my direction.
COUNSEL: How did you feel? What did you think when that happened?
RUNION: I thought that they were going to shoot me or Darla.
COUNSEL: Were you afraid?
RUNION: I was very afraid.
COUNSEL: Did you say anything to Darla when you saw that?
RUNION: No. When I seen that, when I seen them pull their gun on me, that's when I reached for my
gun.
__________

2
We note that NRS 200.120 was amended in 1983, adding the word surreptitious to the definition of
justifiable homicide. Additionally, NRS 200.160 was amended in 1993, repealing language adopted in 1931
concerning circumstances involving fleeing felons which does not bear upon the issues in this case. However, the
legislature did not amend those provisions of NRS 200.160 which were quoted in a jury instruction at issue in
Culverson and construed by this court to allow a right of self-defense whether the person killing is confronted
with danger that is real or merely apparent. See Culverson, 106 Nev. at 487-88, 797 P.2d at 239-40. Thus, we
presume that the legislature approves of this court's interpretation of NRS 200.160 as being consistent with the
common law. See Northern Nev. Ass'n Injured Workers v. SIIS, 107 Nev. 108, 112, 807 P.2d 728, 730 (1991)
(where the legislature has amended a statute but did not change a provision's language subsequent to the court's
interpretation, it is presumed that the legislature approves of the Supreme Court's interpretation of that statutory
provision).
And when I reached for my gun I seen Darla, she already ducked down beneath the windows.
On cross-examination, Runion testified to the following:
COUNSEL: You said you returned fire but you never said that they fired. Were shots fired at you?
RUNION: I think there was.
COUNSEL: You think there were shots?
RUNION: Yes.
COUNSEL: You think the shots came from the other car?
RUNION: Yes.
* * *
COUNSEL: Was the passenger looking at you?
RUNION: He was when he pulled his gun out.
* * *
COUNSEL: How many shots did the first person in that car fire? Did you mention on direct
examination that they had fired shots at you?
* * *
RUNION: I thought they fired one shot that I heard.
COUNSEL: One shot is all you think that was fired?
RUNION: One shot is all that I think I heard.
[Headnote 6]
While Runion's testimony supports a theory of self-defense based on actual danger, other evidence adduced
at trial also supported an apparent danger theory of self-defense. In particular, witness testimony and other
evidence suggested that Goldman, Companioni, Pendergraft, and a fourth occupant of Goldman's vehicle who
did not testify at trial, Adam Rodriguez, were gang members and that they had made hand gestures, including
gang signs, at Runion. Additionally, a gun was later found in the engine compartment of Goldman's vehicle
following the shooting. Moreover, Goldman's version of the events was called into question by the former juror's
claim that Goldman had apparently lied on the witness stand. Thus, Runion was entitled to argue actual danger
(if the jury believed his testimony) and apparent danger (if the jury found that there was no actual danger but that
Runion believed that he saw a gun).
At the close of the evidence, Runion proposed the following instruction to the district court:
SELF DEFENSE (ACTUAL DANGER NOT NECESSARY)
Actual danger is not necessary to justify self-defense. If one is confronted by the appearance of danger
which arouses in one's mind, as a reasonable person, an honest conviction and fear that one is about to
suffer great bodily injury and if a reasonable person in a like situation, seeing and knowing
the same facts, would be justified in believing one's self in like danger and if the
person so confronted acts in self-defense upon such appearances and from such
fear and one's convictions, the right of self-defense is the same whether such
danger is real or merely apparent.
reasonable person in a like situation, seeing and knowing the same facts, would be justified in believing
one's self in like danger and if the person so confronted acts in self-defense upon such appearances and
from such fear and one's convictions, the right of self-defense is the same whether such danger is real or
merely apparent.
The district court refused to give the instruction to the jury on the basis that Runion's testimony prohibited him
from arguing apparent danger and that his only theory of defense was actual danger. The district court then
submitted the following instructions to the jury.
Instruction 25 quotes NRS 200.120 and NRS 200.130 stating:
Justifiable homicide is the killing of a human being in necessary self-defense, or in defense of
habitation, property or person, against one who manifestly intends, or endeavors, by violence or surprise,
to commit a felony, or against any person or persons who manifestly intend and endeavor, in a violent,
riotous, tumultuous or surreptitious manner, to enter the habitation of another for the purpose of
assaulting or offering personal violence to any person dwelling or being therein.
A bare fear of any of the offenses mentioned above, to prevent which the homicide is alleged to have
been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were
sufficient to excite the fears of a reasonable person, and that the party killing really acted under the
influence of those fears and not in a spirit of revenge.
[Headnote 7]
Instruction 26 was derived from NRS 200.160. However, the district court incorrectly used the 1993 version
of that statute rather than the 1996 version in effect at the time of the offense.
3

Homicide is also justifiable when committed either:
1. In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother or sister, or of
any other person in his presence or company, when there is reasonable ground to apprehend a design on
the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any
such person, and there is danger of such design being accomplished;
__________

3
Subsection 3 of NRS 200.160 was repealed by amendment in the 1993 session. Our decision in this case
would not change even if the correct version had been used.
2. In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon
or in a dwelling, or other place of abode in which he is; or
3. By any person, when committed upon the person of another who is engaged in the commission of a
felony or an attempted felony, or who after the commission or attempted commission of any such felony
is fleeing from the premises or resisting lawful pursuit and arrest within 20 miles of the premises where
such felony was committed or attempted to be committed.
Instruction 27 quotes NRS 200.200, stating:
2. The person killed was the assailant.
[Headnotes 8-10]
Generally, the defense has the right to have the jury instructed on a theory of the case as disclosed by the
evidence, no matter how weak or incredible that evidence may be. See Margetts v. State, 107 Nev. 616, 619, 818
P.2d 392, 394 (1991). However, the district court may refuse a jury instruction on the defendant's theory of the
case which is substantially covered by other instructions. See Earl v. State, 111 Nev. 1304, 1308, 904 P.2d 1029,
1031 (1995). The instructions on self-defense submitted to the jury in this case are quotations of NRS 200.120,
200.130, 200.160, and 200.200. Thus, they are largely a correct statement of the law. However, while the
statutory language covers apparent danger, by refusing Runion's proffered instruction on the grounds that his
theory of defense was limited to actual danger, the district court precluded defense counsel from arguing
apparent danger to the jury. In the absence of a specific instruction or any argument by defense counsel on
apparent danger, the instructions given may have misled the jury into concluding that Runion's actions were not
justified even if they found that Runion thought Pendergraft had brandished a weapon but Runion was mistaken
in that belief. Additionally, the superfluous language in the instructions addressing factual scenarios of
self-defense irrelevant to this case may also have confused the jury. Accordingly, we conclude that the district
court erred by limiting Runion's defense to actual danger.
[Headnote 11]
Because not all aspects of the self-defense statutes will be applicable in each case, we direct the district
courts to cease merely quoting the applicable statutes when instructing a jury on
self-defense, and we take this opportunity to set forth sample instructions for
consideration by the district courts in future cases where a criminal defendant asserts
self-defense.
merely quoting the applicable statutes when instructing a jury on self-defense, and we take this opportunity to set
forth sample instructions for consideration by the district courts in future cases where a criminal defendant
asserts self-defense. Whether these or other similar instructions are appropriate in any given case depends upon
the testimony and evidence of that case. The district courts should tailor instructions to the facts and
circumstances of a case, rather than simply relying on stock instructions.
The killing of another person in self-defense is justified and not unlawful when the person who does
the killing actually and reasonably believes:
1. That there is imminent danger that the assailant will either kill him or cause him great bodily
injury; and
2. That it is absolutely necessary under the circumstances for him to use in self-defense force or
means that might cause the death of the other person, for the purpose of avoiding death or great bodily
injury to himself.
A bare fear of death or great bodily injury is not sufficient to justify a killing. To justify taking the life
of another in self-defense, the circumstances must be sufficient to excite the fears of a reasonable person
placed in a similar situation. The person killing must act under the influence of those fears alone and not
in revenge.
An honest but unreasonable belief in the necessity for self-defense does not negate malice and does
not reduce the offense from murder to manslaughter.
The right of self-defense is not available to an original aggressor, that is a person who has sought a
quarrel with the design to force a deadly issue and thus through his fraud, contrivance or fault, to create a
real or apparent necessity for making a felonious assault.
However, where a person, without voluntarily seeking, provoking, inviting, or willingly engaging in a
difficulty of his own free will, is attacked by an assailant, he has the right to stand his ground and need
not retreat when faced with the threat of deadly force.
Actual danger is not necessary to justify a killing in self-defense. A person has a right to defend from
apparent danger to the same extent as he would from actual danger. The person killing is justified if:
1. He is confronted by the appearance of imminent danger which arouses in his mind an honest belief
and fear that he is about to be killed or suffer great bodily injury; and
2. He acts solely upon these appearances and his fear and actual beliefs; and
3. A reasonable person in a similar situation would believe himself to be in like danger.
The killing is justified even if it develops afterward that the person killing was mistaken about the
extent of the danger.
If evidence of self-defense is present, the State must prove beyond a reasonable doubt that the
defendant did not act in self-defense. If you find that the State has failed to prove beyond a reasonable
doubt that the defendant did not act in self-defense, you must find the defendant not guilty.
II. Helton's testimony concerning Runion's statement that he acted in self-defense
Runion also contends that Helton should have been permitted to testify that he told her a few days after the
shooting that he fired in self-defense. Runion argues that the statement was admissible as a prior consistent
statement. We disagree. However, we conclude that the prosecutor's comments on the subject to the jury during
closing arguments were improper and amounted to prejudicial misconduct.
[Headnotes 12, 13]
Prior consistent statements of a witness are generally considered to be inadmissible hearsay. See NRS
51.035. However, they are admissible to rehabilitate a witness charged with recent fabrication or having been
subjected to improper influence. See NRS 51.035(2)(b). A prior consistent statement is not hearsay if: (1) the
declarant testifies at trial; (2) the declarant is subject to cross-examination concerning the statement; (3) the
statement is consistent with the declarant's testimony at trial; and (4) the statement is offered to rebut an express
or implied charge of recent fabrication or improper influence or motive. See Patterson v. State, 111 Nev. 1525,
1531-32, 907 P.2d 984, 988-89 (1995). Additionally, the prior consistent statement, to be admissible, must have
been made at a time when the declarant had no motive to fabricate. See id.; see also Cheatham v. State, 104 Nev.
500, 502, 761 P.2d 419, 421 (1988).
[Headnote 14]
At trial, Runion was questioned on cross-examination concerning what he told Helton about the incident on
the evening of the shooting and was accused of fabricating his testimony concerning self-defense. However,
when defense counsel later called Helton as a witness and attempted to elicit testimony from her that Runion had
told her that he saw a gun in Goldman's car, i.e., that he shot in self-defense, the district court sustained the
State's hearsay objection, precluding Helton from testifying to Runion's prior statement.
prior statement. In sustaining the State's objection, the district court stated that the testimony was inadmissible
hearsay because Runion testified that he told Helton on the evening of the incident that he shot in self-defense
whereas Helton recalled Runion making the statement to her approximately three or four days after the shooting.
The record reveals that, although the statement was materially consistent with Runion's trial testimony that he
shot in self-defense, it was not made at a time when Runion had no motive to fabricate. While he had not yet
been arrested, Runion, as the shooter, had a motive to fabricate as soon as the shooting occurred. Accordingly,
we conclude that the statement was not admissible as a prior consistent statement and that the district court did
not err in refusing to allow Helton to testify concerning the statement on this ground.
4

[Headnote 15]
However, we further conclude that the district court erred in allowing the State to emphasize the effect of its
ruling concerning the admission of the statement to the jury. Over defense objections, the prosecutor stated
during closing arguments that Runion's self-defense theory lacked corroboration, highlighting that the defense
promised in opening statements that Helton would corroborate Runion's story but that Helton offered no such
testimony at trial. The prosecutor urged the jury to infer that Runion's testimony was fabricated and to disregard
it.
[Headnote 16]
A criminal conviction is not lightly overturned on the basis of a prosecutor's comments standing alone. See
United States v. Young, 470 U.S. 1, 11 (1985). However, if the issue of guilt or innocence is close, prosecutorial
misconduct may be considered prejudicial. See Garner v. State, 78 Nev. 366, 373, 374 P.2d 525, 530 (1962).
In this case, because Runion did not deny shooting at Goldman's vehicle, the jury was faced with the difficult
task of determining his mental state at the time. Because the evidence adduced at trial was conflicting, this case
became largely a contest of credibility. Accordingly, we conclude that allowing the prosecutor to emphasize in
closing arguments the failure of Runion to present Helton's corroborating testimony, which failure resulted from
the district court's ruling on hearsay, resulted in an improper and prejudicial advantage to the State.
__________

4
The district court did not consider whether the statement might be admissible pursuant to any other
exception to the hearsay rule, such as an excited utterance. On this ground, the issue of when the statement was
made would bear on credibility not admissibility.
[Headnote 17]
This conduct alone would not warrant reversal. However, the prosecutor's comments, together with the
inability of defense counsel to argue apparent danger to the jury where a specific apparent danger instruction was
requested and rejected, denied Runion a fair trial. See Libby v. State, 109 Nev. 905, 918-19, 859 P.2d 1050,
1059 (1993) (this court will reverse a conviction when the cumulative effect of errors results in the denial of a
fair trial). Upon retrial, the district court is instructed not to allow such comments by the prosecutor if the Helton
testimony is not admitted.
CONCLUSION
We conclude that, given the facts in this case, the improper comments made by the prosecutor during
closing arguments, in the absence of a specific instruction on apparent danger or any argument by defense
counsel on apparent danger, denied Runion a fair trial. Accordingly, we reverse Runion's convictions for
first-degree murder and attempted murder and remand this case to the district court for a new trial.
5

____________
116 Nev. 1054, 1054 (2000) Harte v. State
SHAWN RUSSELL HARTE, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 34227
December 4, 2000 13 P.3d 420
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of first-degree murder with the
use of a deadly weapon and robbery with the use of a deadly weapon and a sentence of death. Second Judicial
District Court, Washoe County; Connie J. Steinheimer, Judge.
Defendant was convicted in the district court of first-degree murder with the use of a deadly weapon and
robbery with the use of a deadly weapon and was sentenced to death. Defendant appealed. The supreme court
held that: (1) defendant made a voluntary, knowing, and intelligent waiver of his Fifth Amendment rights; (2)
deputies did not violate defendant's right to counsel by continuing to question him, overruling Sechrest v. State,
101 Nev. 360, 705 P.2d 626 (1985); (3) testimony regarding various religions' objections to death
penalty was inadmissible at penalty phase;
__________

5
Because this matter is remanded to the district court for a new trial, Runion's remaining assignment of error
concerning the district court's denial of his motion for a new trial based on new evidence regarding witness
Spomer's credibility is moot. Should Spomer testify at retrial, Runion will have the opportunity to raise these
concerns during cross-examination.
116 Nev. 1054, 1055 (2000) Harte v. State
gions' objections to death penalty was inadmissible at penalty phase; (4) excerpt of letter sent by defendant to his
former girlfriend, describing his plans to organize prisoners and escape from prison, was admissible in penalty
phase as being probative of defendant's future dangerousness; and (5) sentence of death was not excessive and
was not under influence of passion, prejudice, or any arbitrary factor.
Affirmed.
Janet Cobb Schmuck, Reno, for Appellant.
P. McCarthy, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Defendant made a knowing, voluntary, and intelligent waiver of his Fifth Amendment rights. Although defendant's comments to
police officers could have indicated some initial confusion, he was immediately reminded of his rights, his subsequent comments
indicated an understanding that he could invoke the right to counsel and refuse to answer questions, 20-year-old defendant was
relatively educated and intelligent and was able to communicate well, and there was no indication that he was coerced into making
incriminating statements. U.S. Const. amend. 5.
2. Criminal Law.
State bears the burden of showing by a preponderance of the evidence that the defendant knowingly and intelligently waived his
Fifth Amendment rights after receiving Miranda warnings. U.S. Const. amend. 5.
3. Criminal Law.
Validity of a waiver of Fifth Amendment rights must be determined in each case based on the particular facts and circumstances
presented, including the background, experience and conduct of the accused. U.S. Const. amend. 5.
4. Criminal Law.
Defendant's question regarding whether his statements were being recorded did not demonstrate his confusion regarding whether
his statements to deputies could be used against him. Rather, in context, question simply appeared to indicate his concern with whether
the tape-recording, versus the mere word of two deputies, would be used against him.
5. Criminal Law.
Defendant did not clearly invoke the right to counsel during interview and his references to counsel were so equivocal and
ambiguous that no reasonable police officer in the circumstances would have understood those references to be a request for an
attorney. Therefore, deputies did not violate defendant's right to counsel by continuing to question him. U.S. Const. amend. 5.
6. Criminal Law.
District court's determination of whether a defendant requested counsel prior to questioning will not be disturbed on appeal if
supported by substantial evidence. U.S. Const. amend. 5.
116 Nev. 1054, 1056 (2000) Harte v. State
7. Criminal Law.
If the police continue their interrogation after the suspect invokes his right to counsel, his statements are presumed involuntary and
are inadmissible as substantive evidence at trial. U.S. Const. amend. 5.
8. Criminal Law.
To require cessation of questioning, a suspect must unambiguously request counsel by articulating his desire to have counsel
present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an
attorney, overruling Sechrest v. State, 101 Nev. 360, 705 P.2d 626 (1985). U.S. Const. amend. 5.
9. Criminal Law.
Interviewing officers are not required to clarify whether or not the suspect actually wants an attorney before resuming questioning.
Testimony regarding various religions' objections to death penalty was irrelevant and thus inadmissible at penalty phase of capital
murder case, where none of the proposed witnesses had any personal knowledge regarding defendant or his co-defendants. NRS
175.552(3), 200.035(7).
Decision to admit particular evidence during the penalty phase of capital case is within the district court's sound discretion and
will not be overturned absent abuse of that discretion.
Eighth and Fourteenth Amendments require that a sentencer in a capital case must not be precluded from considering as a
mitigating factor any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers
as a basis for a sentence less than death. This constitutional rule does not, however, limit the traditional authority of a court to exclude,
as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense. U.S. Const. amends.
8, 14.
There is no constitutional error in rejecting evidence sought to be introduced in the penalty phase of capital case that relates only
generally to sentencing options but does not specifically bear on the defendant or his offense.
Generalized evidence relating only to the merits of capital punishment should be excluded at penalty phase because it is not
designed to help the sentencer focus on the unique characteristics of a particular capital defendant or crime. Such evidence is instead
designed to persuade the sentencer that the legislature erred, in whole or in part, when it enacted a death penalty statute.
Neither statute governing capital-case sentencing which permits presentation of evidence on any matter deemed relevant to
sentence nor catchall provision of statute allowing for consideration of any other mitigating circumstance requires the district court to
admit evidence in penalty phase of capital case that is not required to be admitted pursuant to constitutional dictates. NRS 175.552(3),
200.035(7).
Excerpt of letter sent by defendant to his former girlfriend, describing his plans to organize prisoners and escape from prison, was
admissible in penalty phase of capital murder case.
116 Nev. 1054, 1057 (2000) Harte v. State
sible in penalty phase of capital murder case. Defendant's statements were sufficiently probative of his future dangerousness and
probative value of the statements was not substantially outweighed by the danger of unfair prejudice.
Evidence of a defendant's character and specific instances of conduct is admissible in the penalty phase where the evidence is
relevant and the danger of unfair prejudice does not substantially outweigh its probative value.
Admission of evidence showing past conduct in furtherance of escape is not necessary to support an argument that a defendant
presents an escape risk, for purposes of penalty phase of capital case, where the argument is otherwise supported by reliable evidence.
OPINION
Per Curiam:
Appellant Shawn Russell Harte, in connection with co-defendants Latisha Babb and Weston Sirex, was
indicted, tried before a jury and convicted of first-degree murder with the use of a deadly weapon and
robbery with the use of a deadly weapon. For the murder, the jury returned a verdict of death.
Harte contends on appeal that his conviction must be reversed and his judgment of death vacated because
the district court erred by: (1) denying Harte's motion to suppress his confession as obtained without a valid
waiver of rights and in violation of Harte's right to counsel; (2) granting the State's motion to exclude
Harte's expert witnesses from testifying during the penalty phase; and (3) permitting the State during the
penalty phase to introduce evidence of Harte's statements to show future dangerousness and permitting the
State to argue his future dangerousness based upon that evidence. We affirm Harte's conviction and
sentence.
FACTS
On October 14, 1997, two men were traveling toward Fallon in a vehicle loaded with their personal
belongings on U.S. 95 when their vehicle was shot multiple times. The shooting resulted in damage to the
vehicle including five bullet holes and two shattered windows. When the men arrived in Fallon, they reported
the shooting incident to law enforcement officials. Churchill County Sheriff's Department (CCSD) deputies
investigated the crime scene and found a radio scanner, bullet casings, shoe tracks and distinctive tire tracks.
1

__________

1
Evidence related to the Churchill County shooting incident was not admit-
116 Nev. 1054, 1058 (2000) Harte v. State
Twelve days later, on October 26, 1997, sometime between 4:30 and 5:00 a.m., a supervisor of the
Reno-Sparks Cab Company became aware that a company taxicab and driver, John Castro, had been missing
since midnight. Local law enforcement agencies were notified, and a search was organized to find Castro and the
missing taxicab. Meanwhile, between midnight and 6:00 a.m., several Cold Springs residents had noticed a
Reno-Sparks taxicab parked on a neighborhood street. Ultimately, around 6:00 a.m., one resident discovered that
the taxicab appeared to be occupied by a driver who was sleeping behind the wheel. This resident reported his
discovery to the Reno-Sparks Cab Company, which, in turn, notified the Washoe County Sheriff's Department
(WCSD).
WCSD deputies were dispatched to the missing taxicab's location shortly after 6:30 a.m. On arrival they
found taxicab driver Castro slumped over in the driver's seat. Castro had a major wound in the back of his head
and a large amount of blood coming from his nose and mouth; however, he was still alive and making raspy
breathing sounds. Following Castro's transport to a hospital for medical attention, crime scene investigators
collected a .22 caliber bullet casing from inside the taxicab.
Castro died within twenty-four hours. An autopsy revealed that the cause of death was a contact gunshot
wound to the right-hand side of the back of Castro's head resulting in brain death.
Back in Churchill County, the investigation of the shooting on U.S. 95 led deputies to obtain a search warrant
for appellant Harte's apartment, another residence, and his vehicle, which was believed to have been used by the
perpetrators. On the evening of November 12, 1997, CCSD deputies conducted a traffic stop of Harte's vehicle,
which was driven by Harte and also occupied by Latisha Babb and her child. Harte was advised of the search
warrant and asked to accompany deputies to CCSD, where he was ultimately taken into custody.
During searches of Harte's vehicle, deputies recovered a .22 caliber pistol, which was later shown to have
fired the bullet casing recovered from the taxicab driven by Castro at the time of his murder. Also in the vehicle
were a magazine with .22 caliber bullets, other ammunition and radio scanners. During the search of Harte's
residence, which he shared with Babb, deputies found in Harte's bedroom a wireless microphone, shoes with
treads similar to the tread tracks found at the scene of the U.S. 95 shooting, and two rifles, one of which used
ammunition consistent with the shell evidence found at the U.S. 95 crime scene. Also discovered in Harte's
bedroom were newspaper stories about the Churchill County shooting and Castro's
murder.
__________
ted during the guilt phase of the trial on the instant robbery and murder charges.
116 Nev. 1054, 1059 (2000) Harte v. State
in Harte's bedroom were newspaper stories about the Churchill County shooting and Castro's murder.
From their investigation on November 12, CCSD deputies suspected that Weston Sirex was involved in the
Churchill County shooting. During the late evening hours, deputies went to Reno to locate and interview Sirex.
Deputies met with Sirex at his place of employment, Whittlesea Taxi Company. There, a deputy explained to
Sirex that another suspect was in custody in Fallon and that the deputy wanted to hear Sirex's side of the story. In
response, Sirex became visibly shaken and talked about going north on Cold Springs Road, and stated that it
started out to be a robbery and he was looking out the window when he saw the flash and heard the bang. As a
result of these comments, he was asked to accompany deputies to WCSD.
During the early morning hours of November 13, 1997, Sirex was interviewed by WCSD deputies regarding
Castro's murder. Sirex admitted to being involved in robbing and murdering Castro. According to Sirex, a
Reno-Sparks taxicab was targeted for the robbery because that company did not have the Global Positioning
System that would allow for locating the taxicab if an alarm was set off. He stated, Initially it was just going to
be just to rob him, not to kill him unless absolutely necessary. But I didn't see that happening. Then as we were
headed down Cold Springs Drive, I was looking out the window, I heard the gun go off. I looked over just in
time to see his head go down. Sirex thought they would shoot the taxicab driver for any kind of resistance,
although Castro never offered any and did not even know he was being robbed prior to being shot. Sirex further
admitted to carrying a .22 caliber handgun during the robbery and to taking from the taxicab and keeping at his
residence various items including a pouch containing $84.00 and Castro's wallet. Sirex also admitted to being
involved in the Churchill County shooting. Sirex was arrested for Castro's robbery and murder.
WCSD deputies searched Sirex's residence and seized a loaded .22 caliber pistol; a small pouch containing a
map book cover, which was partially burned and bore writing which appeared to state John Castro, an empty
brown wallet that Sirex identified as Castro's, and miscellaneous personal items; a map directory book for the
Reno-Sparks area; a clipboard; a black organizer with a Reno-Sparks Cab Company business card inside it; and
a Reno-Sparks Cab Company slip.
WCSD deputies also went to Churchill County to interview Harte, who was in custody, and Babb. Both
Harte and Babb admitted to being involved in Castro's murder; Harte admitted to shooting Castro in the head.
Both Harte and Babb also admitted their involvement in the Churchill County shooting incident; Harte stated
he shot at the vehicle for the purpose of robbing its occupants.
116 Nev. 1054, 1060 (2000) Harte v. State
Harte stated he shot at the vehicle for the purpose of robbing its occupants. Ultimately, Harte and Babb were
arrested for Castro's murder and robbery.
In November 1997, Babb granted an interview to a reporter for the Reno Gazette Journal. In the interview,
Babb stated:
I was the driver. It was maybe a 15-minute plan. We weren't out to get this specific person. I jokingly
said, Let's rob a cab. It's easy enough. So we did. I didn't hear the gunshot. I didn't even know he was
shot until I pulled up alongside the car and heard him (the driver) breathing. The cab stopped in Cold
Springs, and I pulled in front of it. I looked and saw him in the front seat with his head rolled back. When
I thought about it later, I kept hearing his breath. I thought maybe someone else would rob a cab and
they'd think he did it. . . .
Harte, Babb, and Sirex were indicted by a grand jury for murder with the use of a deadly weapon and
robbery with the use of a deadly weapon. The State filed a notice of intent to seek the death penalty, alleging two
aggravating circumstances: (1) the murder was committed in the commission of or attempt to commit robbery
with the use of a firearm, see NRS 200.033(4); and (2) the murder was committed to avoid arrest and
prosecution, see generally NRS 200.033(5).
The three defendants were each appointed separate counsel. While awaiting trial, in October 1998, Harte sent
a letter to a former girlfriend, which stated in part:
So this cab driver is just spurting off his mouth about how he got ripped of [sic] $1000 cash earlier,
blah, blah, blah. Now what could that all have been about? Drugs. Fuck this piece of shit. Its [sic]
because of people like him that I don't have a son or daughter. Fuck him.
I chambered a round. A CCI Stinger. .22 caliber hypervelocity hollow-pointed LubNloy-coated 40 grain
slug fired out of my Smith & Wesson semi-auto with 4 inch barrel. Point blank. An inch above the ear
and two behind.
Boom. That simple. That easy. No REMORSE. Honestly.
I jumped up front and let the cab coast right in front of a drug dealers [sic] house in Cold Springs.
Perfect. Windows were up, so it was noiseless (except that ringing in my ears!) Got out. Dark
neighborhood, dark car. . . . We left. Went to Circus Circus. Played some games, gambledcontinued
our good time. Went to Taco Bell . . . and ate. Went home. Simple.
116 Nev. 1054, 1061 (2000) Harte v. State
Nothing to it. Just another chore, like taking out the trash, except easier. And funner.
In March 1999, the case against Harte, Babb and Sirex proceeded to a joint jury trial. The trial resulted in
guilty verdicts against Harte and his co-defendants of first-degree murder with the use of a deadly weapon and
robbery with the use of a deadly weapon.
In addition to some of the evidence discussed above, during the penalty hearing, the State presented victim
impact evidence, evidence relating to the Churchill County shooting incident, and, over Harte's objection,
another portion of the letter written by Harte in October 1998. In the letter, Harte wrote about his plans to
organize prisoners and escape from prison.
Harte's mother testified on his behalf to show mitigation. This testimony showed that at the time of the
hearing Harte was twenty-one years old. He had finished his sophomore year of high school before getting his
G.E.D. and joining the United States Army. He served nearly two years in the Army, and since returning home
had enrolled in college and maintained employment. Further, he had no significant prior criminal record and had
a supportive family. Harte declined to make a statement in allocution.
The jury returned a verdict of death against Harte, finding as an aggravating circumstance that the murder
was committed in the course of a robbery and that any mitigating circumstances were not sufficient to outweigh
the aggravating circumstances.
2
The district court further sentenced Harte for the robbery with the use of a
deadly weapon to two consecutive terms of imprisonment for a maximum term of 180 months with a minimum
parole eligibility of 72 months to run concurrently with the murder sentence. The court entered its judgment of
conviction on May 7, 1999. Harte timely appealed.
DISCUSSION
Denial of Harte's motion to suppress statements
Prior to trial, Harte moved the district court to suppress his incriminating statements made during the
November 13, 1997, interview with WCSD deputies while Harte was in custody in Churchill County for the
shooting on U.S. 95. Harte argued that his waiver of Miranda
3
rights was invalid and that his statements were
obtained in violation of his right to counsel.
The district court conducted an evidentiary hearing and denied Harte's motion to suppress. The court found
that Harte made a knowing, voluntary and intelligent waiver of rights.
__________

2
The jury returned verdicts of life without the possibility of parole against Babb and Sirex.

3
116 Nev. 1054, 1062 (2000) Harte v. State
a knowing, voluntary and intelligent waiver of rights. The court further found that Harte did not clearly invoke
the right to counsel during the interview; therefore, the court concluded, deputies did not violate Harte's right to
counsel by continuing to question him. Our review of the record supports the district court's determination.
Whether Harte's initial waiver of rights was valid
[Headnote 1]
Harte first argues that the district court erred in determining that he validly waived his Miranda rights. He
specifically contends that his statements, discussed below, show confusion regarding his rights. We conclude
that the record supports the district court's finding of a valid waiver.
[Headnotes 2, 3]
The State bears the burden of showing by a preponderance of the evidence that the defendant knowingly and
intelligently waived his Fifth Amendment rights after receiving Miranda warnings. Falcon v. State, 110 Nev.
530, 534, 874 P.2d 772, 775 (1994). The validity of the waiver must be determined in each case based on the
particular facts and circumstances presented including the background, experience and conduct of the accused.
Anderson v. State, 109 Nev. 1129, 1133, 865 P.2d 318, 320 (1993) (citing Edwards v. Arizona, 451 U.S. 477
(1981)).
The record from the evidentiary hearing shows that Harte was twenty years old at the time of the interview,
was relatively educated and intelligent, and was able to communicate well. There is no indication that he was
coerced into making incriminating statements. See generally Elvik v. State, 114 Nev. 883, 891-93, 965 P.2d 281,
286-88 (1998). Before Harte agreed to talk to deputies, he was verbally advised of his Miranda rights and
specifically indicated orally and in writing, by signing an advisement form, that he understood his rights.
To support his claim that the record does not show that he understood his rights sufficiently to validly waive
them, Harte points to the following emphasized comments, which he made following preliminary questioning:
[HARTE]: Just out of curiosity, when do I get to talk to a lawyer? Cuz, I've been like talked to several
times now. It's kinna going in circles.
[DEPUTY]: . . . okay. Well, that's the whole idea of the rights there if you don't . .
[HARTE]: Yeah.
[DEPUTY]: . . . want to talk to us that's fine. Yeah. You know, that . . that's the whole idea of the rights.
That's why.
116 Nev. 1054, 1063 (2000) Harte v. State
[HARTE]: Yeah, yeah, I . .
[DEPUTY]: If you wanna talk to us or.
[HARTE]: . . I . . they . . they told me, you know, that they thought I should talk to a lawyer or whatever.
So, I just . . .
[DEPUTY]: Who's they?
[HARTE]: Um . . the other guy that interviewed me yesterday. Just . . all the people I've been talkin' to
and whatnot.
[DEPUTY]: Okay. This is a separate case. You wanna talk to us?
[HARTE]: Sure.
[DEPUTY]: Okay.
[DEPUTY]: You can stop at any time.
[HARTE]: Uh huh.
(Emphasis added.)
We do not agree that these comments by Harte undermine the validity of his waiver of rights. While the
comments might indicate some initial confusion, Harte was immediately reminded of his rights. Moreover,
Harte's subsequent comments indicate he understood that he could invoke the right to counsel and refuse to
answer questions. For instance, during the questioning that followed the above exchange, Harte told deputies,
[Y]ou guys are askin' me some serious questions here. You know, I don't wanna . . I don't wanna be a bitch
and say, you know, give my [sic] lawyer. But I mean. Harte also told deputies that he did not want to
incriminate himself based on deputies' bullshitting, and, therefore, before he would give them any
information, he wanted deputies to share with him their knowledge regarding the circumstances of the crime.
Thus, Harte's own comments demonstrate that he understood that whether to proceed with the interview and
whether to do so without the assistance of counsel were entirely within his discretion.
As further support for his contention, Harte relies upon another portion of the interview wherein he made
the following emphasized comments:
[HARTE]: Uh huh. What do you think a lawyer would tell me right now?
[DEPUTY]: I'm not a lawyer.
[HARTE]: I'm sure you've been around lawyers. I mean . . I . . I don't wanna incriminate myself but . .
ah . .
. . .
[DEPUTY]: [ ] So tell us what happened in the cab. Where'd you go?
. . .
116 Nev. 1054, 1064 (2000) Harte v. State
You know it's right there. You know you want to tell us the truth. You're not a bad guy.
[HARTE]: Oh, yeah. You know that and I know that but if I say anything then . . if I don't say anything
it's just gonna make it worse and if I do anything it could incriminate myself and I . . I think you
understand where I'm comin' from. Just . . ah . .
(Emphasis added.) Harte also points to his subsequent question to deputies, [I]s this recorded at all? Is what I
tell you . . can this be used in court?
However, again, Harte's comments do not indicate that he did not understand his rights. Rather, the
comments, in context, support the determination that Harte understood that he had the right to counsel and to
refuse to answer questions. It is apparent that he chose not to invoke those rights during the interview based on
his assessment of how much incriminating evidence deputies already possessed. For instance, following the
above-emphasized statements, Harte told deputies that if they wished to get to the bottom of things, they
should state two specific facts that only Sirex would know. Deputies told Harte that they knew about a body
microphone that he wore during the crime and knew that Babb was following the taxicab and listening during
the crime. When Harte later made a full confession, he stated that he would tell deputies what happened since
they knew more than they could without being told by one of the participants and that Harte had to make sure
deputies got him before he blab[bed]. Afterward, Harte acknowledged that he felt better talking about the
crime. Thus, our review of the record does not demonstrate any real confusion regarding his rights, but instead
shows that he was contemplating his options with regard to exercising those rights.
[Headnote 4]
Additionally, Harte's question regarding whether his statements were being recorded does not demonstrate,
as he argues, his confusion regarding whether his statements to deputies could be used against him. This
question was immediately followed by Harte's explanation to detectives that he would appreciate it if they would
turn off the recorder. He stated, It just kinna bothers me. I mean two detectives' word against me. In context,
Harte's question simply appears to indicate his concern with whether the tape-recording, versus the mere
word of two deputies, would be used against him. Prior to the interview, Harte was informed that anything he
said during the interview could and would be used against him in court. During the interview, he made several
references to the fact that by giving a statement he would incriminate himself.
116 Nev. 1054, 1065 (2000) Harte v. State
nate himself. Additionally, after confessing, he agreed to a subsequent interview by Churchill County deputies,
stating that he had already admitted the Churchill County incident during the instant interview and that what he
had said could be used against him in court. Accordingly, Harte's contention lacks merit.
We conclude that, considering the facts and circumstances here, the district court did not err in determining
that Harte made a voluntary, knowing and intelligent waiver of rights.
Whether Harte's confession was obtained in violation of his right to counsel
[Headnote 5]
Harte also argues that he requested counsel, albeit ambiguously, during the interview; therefore, relying
principally on Sechrest v. State, 101 Nev. 360, 705 P.2d 626 (1985), he contends that deputies were prohibited
from continuing with the interview without first clarifying whether Harte was invoking his right to counsel. We
disagree.
[Headnote 6]
A district court's determination of whether a defendant requested counsel prior to questioning will not be
disturbed on appeal if supported by substantial evidence. Tomarchio v. State, 99 Nev. 572, 575, 665 P.2d 804,
806 (1983).
[Headnote 7]
In Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), the United States Supreme Court held that in order to
protect the Fifth Amendment right to counsel recognized in Miranda, once an accused has expressed a desire to
deal with police only through counsel, he is not subject to further interrogation until counsel has been made
available to him, unless the accused himself initiates further communication with police. If the police continue
their interrogation after the suspect invokes his right to counsel, his statements are presumed involuntary and are
inadmissible as substantive evidence at trial. McNeil v. Wisconsin, 501 U.S. 171, 177 (1991); accord Boehm v.
State, 113 Nev. 910, 915, 944 P.2d 269, 272 (1997).
At the time Sechrest was decided, the United States Supreme Court had not addressed the issue of continued
questioning following an ambiguous request for counsel, although various approaches had been developed by
state and lower federal courts. See Davis v. United States, 512 U.S. 452, 456 (1994). In addressing the issue in
Sechrest, we applied the rule adopted by the Fifth Circuit Court of Appeals: Even an equivocal request for
counsel by an accused requires that law enforcement officials must cease the interrogation unless they
ask the suspect further questions to clarify whether the suspect wants to consult with an
attorney before continuing with the interrogation.
116 Nev. 1054, 1066 (2000) Harte v. State
cease the interrogation unless they ask the suspect further questions to clarify whether the suspect wants to
consult with an attorney before continuing with the interrogation.' Sechrest, 101 Nev. at 365, 705 P.2d at 630
(quoting United States v. Cherry, 733 F.2d 1124, 1130 (5th Cir. 1984)).
We need not determine, however, as Harte suggests, whether deputies violated the rule recognized in
Sechrest that permits only clarification questioning after an ambiguous reference to counsel. Subsequent to this
court's decision in Sechrest, the Supreme Court, recognizing a division among the lower courts, granted
certiorari in Davis v. United States, 512 U.S. 452 (1994), to decide how law enforcement officers must respond
when a suspect makes a reference to counsel that is insufficiently clear to invoke the Edwards prohibition on
further questioning. See id. at 454, 456.
[Headnote 8]
The Court held that the Edwards rule, which requires cessation of the interview if a suspect requests counsel
at any time during the interview, applies only where a suspect has actually invoked his right to counsel. Id. at
458-59. The determination must be made on an objective basis. Id. To require cessation of questioning, the
suspect must unambiguously request counsel by articulating
his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances
would understand the statement to be a request for an attorney. If the statement fails to meet the requisite
level of clarity, Edwards does not require that the officers stop questioning the suspect.
Davis, 512 U.S. at 459 (citing Moran v. Burbine, 475 U.S. 412, 433 n.4 (1986)); accord Boehm, 113 Nev. at
915, 944 P.2d at 272 (to invoke the Fifth Amendment right to counsel during a custodial interrogation, a suspect
must make some statement that can reasonably be construed to be an expression of a desire for the presence of
an attorney' (quoting McNeil, 501 U.S. at 178)). [A] reference to an attorney that is ambiguous or equivocal in
that a reasonable officer in light of the circumstances would have understood only that the suspect might be
invoking the right to counsel is not sufficient. Davis, 512 U.S. at 459. The Court explained that the Edwards
rule is designed to ensure that police will not badger a defendant into waiving his previously asserted Miranda
rights. Id. at 458. However, requiring cessation of an interview when the questioning officers do not reasonably
know whether the suspect wants an attorney, would transform the Miranda safeguards into wholly irrational
obstacles to legitimate police investigative activity.
116 Nev. 1054, 1067 (2000) Harte v. State
police investigative activity.' Id. at 460 (quoting Michigan v. Mosley, 423 U.S. 96, 102 (1975)). The Court
recognized that when a suspect makes an ambiguous or equivocal statement it will often be good police
practice for the interviewing officers to ask clarifying questions. Id. at 461. The Court declined, however, to
adopt a rule requiring officers to ask clarifying questions, instead holding that after a knowing and voluntary
waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect
clearly requests an attorney. Id. at 461.
We hold that the rule announced in Davis applies to custodial interrogations in Nevada, and we approve of
the district court's application of the Davis holding in the instant case. Accordingly, we hereby overrule Sechrest
to the extent that it prohibits questioning beyond clarifying questions after an ambiguous request for counsel. Cf.
Coleman v. Singletary, 30 F.3d 1420, 1424 (11th Cir. 1994) (recognizing that pursuant to Davis decision, rule
formerly applied in the Eleventh Circuit permitting only clarification questioning after ambiguous request for
counsel is no longer good law).
Harte contends that his case may be distinguished from Davis, because there, the interview continued for an
hour and a half before the suspect made his ambiguous reference to counsel, see Davis, 512 U.S. at 455;
whereas, almost immediately Harte asked, Just out of curiosity, when do I get to talk to a lawyer? Immediately
following this, Harte said, I . . they . . they told me, you know, that they thought I should talk to a lawyer or
whatever. Later in the interrogation, Harte said, I don't wanna be a bitch and say, you know, give my [sic]
lawyer. But I mean. Following that, Harte stated, What do you think a lawyer would tell me right now? Harte
therefore suggests that because he continued to refer to counsel throughout the interview, deputies were required
to clarify whether he desired counsel before resuming questioning.
[Headnote 9]
However, the Court's holding in Davis focused on the clarity of the request for counsel, and not its timing.
Pursuant to Davis, interviewing officers are not required to clarify whether or not the suspect actually wants an
attorney before resuming questioning. Moreover, here deputies did remind Harte of his rights and also clarified
whether he wanted to talk to them after he made his first statements referring to counsel. Harte replied, Sure.
Deputies further reminded Harte that he could stop the interview at any time. Thereafter, Harte never clearly
requested counsel, and his references to counsel were so equivocal and ambiguous that no reasonable police
officer in the circumstances would understand those references to be a request for an
attorney.
116 Nev. 1054, 1068 (2000) Harte v. State
reasonable police officer in the circumstances would understand those references to be a request for an attorney.
We conclude that substantial evidence supports the district court's determination that Harte did not invoke his
right to counsel. Therefore, deputies did not violate Harte's right to counsel by continuing with the interview.
4

Exclusion of testimony at the penalty phase regarding various religions' objections to the death penalty
[Headnote 10]
Harte filed a pretrial notice of intent to call four expert witnesses who would testify in the event of a
penalty phase to various religions' moral, ethical and religious objections to the death penalty. The State moved
to exclude these witnesses' testimony. The district court heard argument on the motion outside the jury's
presence, and Harte provided an offer of proof through the testimony of three of the proposed witnesses, a
pastor of a Lutheran Church, a Catholic priest, and a rabbi of the Jewish Reform Movement. Each testified as
to the reasons for his religion's opposition to the death penalty. However, none of the proposed witnesses had
any personal knowledge regarding Harte or his codefendants. The district court subsequently granted the
State's motion to exclude the testimony of Harte's proposed witnesses.
Harte challenges the district court's ruling and argues that the excluded testimony was admissible pursuant
to cases interpreting Eighth Amendment requirements at sentencing. He also argues this evidence was
admissible pursuant to Nevada statutes governing capital-case sentencing, specifically, NRS 175.552(3), which
permits presentation of evidence on mitigating circumstances as well as evidence on any other matter which
the court deems relevant to sentence,
5
and the catchall provision at subsection (7) of NRS 200.035, which
provides that, in addition to mitigating circumstances identified in subsections (1) through (6), [a]ny other
mitigating circumstance may be considered. Harte's contentions lack merit.
__________

4
Harte also argues that his statements that followed his alleged invocation of the right to counsel may not be
considered to undermine the effect of his request. He relies on Smith v. Illinois, 469 U.S. 91, 99-100 (1984),
which held that where an accused has unambiguously requested counsel all questioning must cease, and an
accused's postrequest responses to further interrogation may not be used to cast doubt on the clarity of his
initial request for counsel. However, Harte's reliance on Smith is misplaced; Harte never unambiguously
invoked the right to counsel.

5
NRS 175.552(3) provides that, during the sentencing hearing, evidence may be presented concerning
aggravating and mitigating circumstances relative to the offense, defendant or victim and on any other matter
which the court deems relevant to sentence, whether or not the evidence is ordinarily admissible. (Emphasis
added.)
116 Nev. 1054, 1069 (2000) Harte v. State
[Headnote 11]
The decision to admit particular evidence during the penalty phase is within the district court's sound
discretion and will not be overturned absent abuse of that discretion. Parker v. State, 109 Nev 383, 391, 849
P.2d 1062, 1067 (1993).
[Headnotes 12, 13]
The Eighth and Fourteenth Amendments require that a sentencer in a capital case must not be precluded from
considering as a mitigating factor any aspect of a defendant's character or record and any of the circumstances
of the offense that the defendant proffers as a basis for a sentence less than death.' Eddings v. Oklahoma, 455
U.S. 104, 110 (1982) (quoting Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion of Burger, C.J.));
Skipper v. South Carolina, 476 U.S. 1, 4 (1986); accord Wilson v. State, 105 Nev. 110, 115, 771 P.2d 583, 586
(1989). This constitutional rule does not, however, limit the traditional authority of a court to exclude, as
irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense.
Lockett, 438 U.S. at 604 n.12 (plurality opinion of Burger, C.J.); see also Scott v. Dugger, 891 F.2d 800, 806
(11th Cir. 1989) (and cases cited therein). Therefore, there is no constitutional error in rejecting evidence sought
to be introduced in the penalty phase that relates only generally to sentencing options but does not specifically
bear on the defendant or his offense. See, e.g., Sonner v. State, 112 Nev. 1328, 1341-42, 930 P.2d 707, 716
(1996) (rejecting constitutional challenge to district court's exclusion on the basis of irrelevancy of evidence
from prison inmate regarding consequences of serving life sentence without possibility of parole), modified in
part on other grounds on rehearing, 114 Nev. 321, 955 P.2d 673, cert. denied, 525 U.S. 886 (1998).
[Headnote 14]
We agree with other courts that have rejected constitutional challenges to the exclusion of similar evidence
relating only generally to the merits of capital punishment. See, e.g., Glass v. Butler, 820 F.2d 112, 115-16 (5th
Cir. 1987) (concluding exclusion of testimony related to religious opposition to death penalty did not constitute
error); Kordenbrock v. Scroggy, 680 F. Supp. 867, 888-90 (E.D. Ky. 1988) (upholding exclusion of testimony
on, inter alia, historical evolution of moral thought regarding capital punishment and on ethical and religious
objections to capital punishment), rev'd on other grounds by 919 F.2d 1091 (6th Cir. 1990); Evans v. Thigpen,
631 F. Supp. 274, 285-86 (S.D. Miss. 1986) (upholding exclusion of minister's proffered testimony on various
churches' opposition to capital punishment and biblical teachings in that regard), aff'd by 809 F.2d 239 (5th Cir.
1987).
116 Nev. 1054, 1070 (2000) Harte v. State
Such generalized evidence should be excluded because it is not designed to help the sentencer focus on the
unique characteristics of a particular capital defendant or crime. Rather, such evidence is designed to persuade
the sentencer that the legislature erred, in whole or in part, when it enacted a death penalty statute. Martin v.
Wainwright, 770 F.2d 918, 936 (11th Cir. 1985) (footnote omitted), modified in part on other grounds on
rehearing by 781 F.2d 185 (11th Cir. 1986). This sort of evidence might commend itself to a legislative body
considering adoption or retention of the death penalty, but it has no bearing on the question whether a particular
defendant . . . should receive death or some lesser authorized penalty. Stokes v. Armontrout, 851 F.2d 1085,
1096 (8th Cir. 1988).
[Headnote 15]
Moreover, we hold that neither NRS 175.552(3) nor NRS 200.035(7) requires the district court to admit
evidence that is not required to be admitted pursuant to constitutional dictates. We have interpreted the scope of
admissibility for evidence offered in the penalty phase of capital trials under these statutory provisions as
consistent with the admissibility parameters under the constitutional rule. See, e.g., Hollaway v. State, 116 Nev.
732, 745-46, 6 P.3d 987, 996-97 (2000) (pursuant to constitutional rule, NRS 175.552(3) and NRS 200.035(7),
evidence presented in mitigation must be relevant to the offense, defendant or victim; other matter evidence
referred to in NRS 175.552(3) is subject to the same relevancy test); Collman v. State, 116 Nev. 687, 725, 7
P.3d 426, 450 (2000) (concluding that neither NRS 175.552(3) nor case law interpreting constitutional rule
requires admission of evidence irrelevant to victim, defendant, or offense); Sonner, 112 Nev. at 1341-42, 930
P.2d at 716 (rejecting constitutional challenge to exclusion of evidence irrelevant to sentencing and therefore not
admissible under NRS 175.552(3)); see also McKenna v. State, 101 Nev. 338, 347 & n.11, 705 P.2d 614, 620 &
n.11 (1985) (recognizing that trial court should interpret mitigating evidence broadly under constitutional rule,
NRS 175.552 and NRS 200.035(7)).
For these reasons, we conclude that the district court did not err in excluding as irrelevant the testimony of
Harte's proposed witnesses.
Evidence and argument on future dangerousness
[Headnote 16]
During the penalty phase, the district court admitted into evidence, over Harte's objection, a second excerpt
of the letter sent by Harte to his former girlfriend in October 1998. The excerpt stated:
116 Nev. 1054, 1071 (2000) Harte v. State
Prison is just a whole new opportunity. I'm young, so I don't expect automatic respect. Buy [sic] when
people realize my intelligence and knowledge, I become a god. I will TEMPORARILY unite all races in
prison and teach that prisoner is a race and that anyone trying to keep us imprisoned is another race. I
will create a system and have reps from each race or clique. Freedom will be obtained.
I will first see the chances of just myself escaping, or perhaps a few. But mass people riots just sounds
so much fun.
During closing argument, the prosecutor argued that Harte deserved to be sentenced to death based on his
future dangerousness as evidenced by his stated desire to escape from prison as well as his violent character as
shown by the circumstances of the instant crime and the Churchill County shooting.
[Headnote 17]
Harte claims that the district court erred by admitting into evidence Harte's statements, which he contends
were unfairly prejudicial, and by permitting the prosecutor to rely on these statements as support for his
argument that Harte presented a future danger to society. We disagree. Evidence of a defendant's character and
specific instances of conduct is admissible in the penalty phase where the evidence is relevant and the danger of
unfair prejudice does not substantially outweigh its probative value. McKenna v. State, 114 Nev. 1044, 1051-52,
968 P.2d 739, 744 (1998) (citing Pellegrini v. State, 104 Nev. 625, 630-31, 764 P.2d 484, 488 (1988); NRS
48.035(1); NRS 175.552(3)), cert. denied, 528 U.S. 937 (1999). Applying this test, we have held that evidence
from which a jury could fairly infer that incarceration will not deter the defendant from endangering others lives
is admissible to show his future dangerousness. See, e.g., Leonard v. State, 108 Nev. 79, 82, 824 P.2d 287,
289-90 (1992) (defendant not unfairly prejudiced by admission of evidence of defendant's escape attempt and
other prior crimes). We have also recognized that a defendant's own statements may constitute such admissible
evidence. See, e.g., Witter v. State, 112 Nev. 908, 921, 921 P.2d 886, 895 (1996) (evidence of defendant's
statement that he could heighten his reputation if he were to kill police officers was properly admitted to show
future dangerousness); Biondi v. State, 101 Nev. 252, 257, 699 P.2d 1062, 1065 (1985) (evidence of defendant's
death threat to State's witness and admissions to other witness is admissible to show character and circumstances
of offense).
We conclude that Harte's statements were sufficiently probative of his future dangerousness and that the
probative value of the statements was not substantially outweighed by the danger of unfair prejudice.
116 Nev. 1054, 1072 (2000) Harte v. State
unfair prejudice. Therefore, the district court did not err in admitting the statements during the penalty phase of
trial. We further conclude that the prosecutor could properly rely on these statements as support for the future
dangerousness argument. Cf. Castillo v. State, 114 Nev. 271, 280, 956 P.2d 103, 109 (1998) (holding that future
dangerousness argument was properly supported by the evidence, which included defendant's own statements to
psychologist), cert. denied, 526 U.S. 1031 (1999), and corrected on other grounds by McKenna, 114 Nev. at
1058 n.4, 968 P.2d at 748 n.4.
Harte contends that the prosecutor could not properly argue that Harte presented an escape risk, and
therefore, a future danger to others, because no evidence showed any past conduct by him in furtherance of
escape. He relies on Howard v. State, 106 Nev. 713, 800 P.2d 175 (1990); this reliance on Howard is misplaced.
Howard interprets the rule enunciated in Haberstroh v. State, 105 Nev. 739, 782 P.2d 1343 (1989). In
Haberstroh, this court declared that where there is evidence of a defendant's past conduct that supports a
reasonable inference that incarceration will not deter the defendant from endangering others' lives, a prosecutor
is entitled to ask the jury to draw that inference. 105 Nev. at 741-42, 782 P.2d at 1344-45. In Howard, this court
determined that under the Haberstroh rule, a prosecutor may only argue that a defendant presents a future escape
risk where evidence of past conduct supports it. Howard, 106 Nev. at 719, 800 P.2d at 178; accord Emmons v.
State, 107 Nev. 53, 61, 807 P.2d 718, 723 (1991). Because no evidence showed any prior escape attempts, the
prosecutor could not properly argue that the defendant might escape from prison. Howard, 106 Nev. at 719, 800
P.2d at 178.
[Headnote 18]
However, the Haberstroh past conduct rule upon which the Howard decision relied has since been
modified to allow future dangerousness arguments based on no other evidence than the violent nature of the
offense for which the defendant is being sentenced. See Redmen v. State, 108 Nev. 227, 235, 828 P.2d 395, 400
(1992), overruled on other grounds by Alford v. State, 111 Nev. 1409, 906 P.2d 714 (1995). Therefore,
admission of evidence showing past conduct in furtherance of escape is no longer necessary to support an
argument that a defendant presents an escape risk where the argument is otherwise supported by reliable
evidence.
6
Thus, Harte's contention lacks merit.
__________

6
We hereby recognize that Howard and Emmons have been abrogated to the extent that these cases require
evidence of past conduct to support an argument of future dangerousness by reason of escape risk.
116 Nev. 1054, 1073 (2000) Harte v. State
Mandatory review
In addition to any errors enumerated by Harte, NRS 177.055(2) requires this court to consider:
Our review of the record demonstrates that the State proved beyond a reasonable doubt that Harte
committed the murder while in the commission of a robbery. See NRS 200.033(4). There is no indication that
the sentence was imposed under the influence of passion, prejudice or any arbitrary factor. Moreover,
considering the callous, brutal and unprovoked nature of the crime and evidence of Harte's violent character, we
conclude that the sentence of death is not excessive.
CONCLUSION
We conclude that the district court did not err in denying Harte's motion to suppress his confession,
granting the State's motion to exclude Harte's expert witnesses from testifying during the penalty phase, or
permitting the State during the penalty phase to introduce evidence of Harte's statements to show his future
dangerousness and to argue his future dangerousness based upon that evidence. Further, our mandatory review
under NRS 177.055 reveals no indication that Harte's death sentence was improperly imposed. Accordingly, we
affirm Harte's conviction and sentence of death.
During custodial interrogation, Harte asked, When do I get to talk to a lawyer? I consider this statement
to be an unequivocal request for counsel, and thus the failure to stop questioning and provide Harte with an
attorney a violation of Harte's federal and state constitutional rights. See Boehm v. State, 113 Nev. 910,
914-15, 944 P.2d 269, 272 (1997); Sechrest v. State, 101 Nev. 360, 364-67, 705 P.2d 626, 629-31 (1985);
Edwards v. Arizona 451 U.S. 477 (1981) (holding that once an unequivocal request for counsel is made, all
further police questioning must cease and the admission of such evidence violates an accused's right to counsel).
Even if Harte's requests for an attorney were equivocal, as the majority has held, our decision in Sechrest
requires that the police officers cease their interrogation unless their questions are designed to clarify the
detainee's desire to speak to an attorney.
116 Nev. 1054, 1074 (2000) Harte v. State
designed to clarify the detainee's desire to speak to an attorney. This rule does not seem to have caused any
undue hardship for law enforcement in the past fifteen years and it has provided a reasonable method for
ascertaining an arrested person's true intent about whether he wishes to have legal counsel during custodial
interrogation.
The majority, however, has decided to overrule the Sechrest case in light of the United States Supreme
Court's decision in Davis v. United States, 512 U.S. 452 (1994), wherein a deeply divided five-four majority
held that custodial interrogation may continue when the detainee's request for counsel is equivocal. I find more
merit in the Davis concurrence, however, in which Justice Souter endorsed the cease-and-clarify approach we
adopted in Sechrest and observed:
While the question we address today is an open one, its answer requires coherence with nearly three
decades of case law addressing the relationship between police and criminal suspects in custodial
interrogation. Throughout that period, two precepts have commanded broad assent: that the Miranda
safeguards exist to assure that the individual's right to choose between speech and silence remains
unfettered throughout the interrogation process,' and that the justification for Miranda rules, intended to
operate in the real world, must be consistent with . . . practical realities. A rule barring government
agents from further interrogation until they determine whether a suspect's ambiguous statement was
meant as a request for counsel fulfills both ambitions. It assures that a suspect's choice whether or not to
deal with police through counsel will be scrupulously honored, and it faces both the real-world reasons
why misunderstandings arise between suspect and interrogator and the real-world limitations on the
capacity of police and trial courts to apply fine distinctions and intricate rules.
Davis, 512 U.S. at 468-69 (citations omitted).
We do not have to abandon our rules and decisions every time the Rehnquist majority decides to reduce
individual protections. See State v. Harnisch, 114 Nev. 225, 227-28, 954 P.2d 1180, 1182 (1998) ( It is
elementary that States are free to provide greater protections in their criminal justice system than the Federal
Constitution requires.' (quoting California v. Ramos, 463 U.S. 992, 1013-14 (1983))). Instead, we should
retain our precedent and conclude that the right to counsel clause of our own Nevada Constitution requires
compliance with the Sechrest decision. See, e.g., State v. Hoey, 881 P.2d 504, 522-23 (Haw. 1994) (rejecting
Davis majority and adopting the cease-and-clarify rule announced in Davis concurrence because the
right to counsel provisions of the state's constitution afforded greater rights than those
guaranteed by the Federal Constitution).
116 Nev. 1054, 1075 (2000) Harte v. State
announced in Davis concurrence because the right to counsel provisions of the state's constitution afforded
greater rights than those guaranteed by the Federal Constitution). Accordingly, I would hold that the additional
protections afforded in Sechrest are required by our own state constitution.
Although I disagree with the majority's conclusion that Harte's request was equivocal and that Sechrest
should be overruled, I nonetheless concur with the majority's decision to affirm the district court's judgment. On
account of the abundant admissible evidence establishing Harte's guilt, including other incriminating statements
that Harte made and that were properly admitted, I would hold that the district court error was harmless beyond a
reasonable doubt. See Holyfield v. State, 101 Nev. 793, 805, 711 P.2d 834, 841-42 (1985) (applying harmless
error test where evidence was admitted in violation of Miranda); Arizona v. Fulminante, 499 U.S. 279, 295-96
(1991) (holding that admission of evidence obtained in violation of Miranda is subject to harmless error
analysis).
____________
116 Nev. 1075, 1075 (2000) Dennis v. State
TERRY JESS DENNIS, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 34632
December 4, 2000 13 P.3d 434
Appeal from a judgment of conviction, pursuant to a guilty plea, of first-degree murder with the use of a
deadly weapon and sentence of death. Second Judicial District Court, Washoe County; Janet J. Berry, Judge.
Defendant was convicted upon guilty plea in the district court of first-degree murder with the use of a deadly
weapon and was sentenced to death. Defendant appealed. The supreme court, Becker, J., held that: (1) inquiry
into excessiveness of death sentence, while not involving a proportionality review, may involve a consideration
of whether various objective factors previously considered relevant to excessiveness in other cases are present;
and (2) death sentence was not excessive.
Affirmed.
[Rehearing denied January 23, 2001]
Frankie Sue Del Papa, Attorney General, Carson City; Richard A. Gammick, District Attorney,
and Joseph R. Plater III, Deputy District Attorney, Washoe County, for Respondent.
A. Gammick, District Attorney, and Joseph R. Plater III, Deputy District Attorney, Washoe County, for
Respondent.
Capital sentencing panel's finding of three aggravating circumstances, in form of three prior felony convictions involving use or
threat of violence to the person of another, was supported by felony assault conviction for putting knife to victim's neck and then
ripping blade through victim's hand, by felony arson conviction for setting on fire a house in which an individual with whom defendant
had quarreled was visiting, and by felony assault conviction for lunging with knife at officer who responded to arson report. NRS
177.055(2), 200.033(2)(b).
Death sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor, where three-judge
sentencing panel considered evidence of charged murder, background and characteristics of defendant, and both the aggravating and
mitigating circumstances before concluding that aggravating circumstances outweighed the mitigating and a death sentence was
appropriate. NRS 177.055(2)(c).
Supreme court reviews a death penalty for excessiveness under death penalty statute considering only the crime and the defendant
at hand. NRS 177.055(2)(d).
Inquiry into excessiveness of a death sentence, while not involving a proportionality review, may involve a consideration of
whether various objective factors that were previously considered relevant to excessiveness in other cases are present and suggest the
death sentence under consideration is excessive. NRS 177.055(2)(d).
Death penalty imposed for first-degree murder with use of deadly weapon was not excessive, despite defendant's mental illness and
his intoxication from alcohol at time of crime, where defendant deliberately strangled victim over course of five to ten minutes and
made efforts to assure her death, and aggravating circumstances in form of three prior felony convictions showed continuing pattern of
violence spread out over time and increasing in severity. NRS 177.055(2)(d).
OPINION
The State charged appellant Terry Jess Dennis by information with one count of first-degree murder
with the use of a deadly weapon for the March 1999, willful, deliberate and premeditated strangulation
murder of Ilona Straumanis. The State subsequently filed a notice of intent to seek the death penalty.
On April 16, 1999, Dennis entered a guilty plea, pursuant to a written plea agreement, to first-degree
murder with the use of a deadly weapon.
deadly weapon. A penalty hearing was conducted before a three judge panel. The panel found that three alleged
aggravators (three prior felony convictions involving the use or threat of violence to the person of another) were
proved beyond a reasonable doubt. The panel also found two mitigating circumstances existed: Dennis was
under the influence of alcohol when he killed Straumanis, and he suffers from mental illness. The panel
concluded that the mitigating circumstances did not outweigh the aggravating circumstances and returned a
verdict of death.
Dennis argues only that his sentence of death is excessive. We affirm.
FACTS
On the afternoon of March 9, 1999, Dennis, who was fifty-two years old, unemployed and homeless,
telephoned the Reno Police Department (RPD) Dispatch, and told a dispatcher that he had killed a woman
and her body was in his room at a local motel. Dennis stated that he was in the same room watching television
and would wait for police to arrive. Dennis also stated that dispatchers should send a coroner, as [t]he bitch
ha[d] been dead for three or four days.
An RPD detective responded to Dennis's motel room, contacted Dennis, and asked whether he had any
weapons. Dennis stated that he had used his hands to kill the victim and did not have any weapons. He agreed
to be interviewed and was transported to the police department.
At the police department, detectives advised Dennis of his Miranda
1
rights. Dennis waived his rights and
agreed to be interviewed. When questioned about the murder, Dennis stated that his memory was unclear on
certain details because he had consumed about a fifth of vodka a day for the past week.
2

During the interview, Dennis reported the following. He had been staying at the motel where the murder
occurred since March 3, 1999. Two or three nights into his stay, he left his room to go to a local saloon. On his
way to the saloon, he met the victim, who was later identified as Ilona Straumanis, a fifty-six-year-old woman.
Straumanis had bruises about her eyes and told Dennis that she had been beaten by another man. Straumanis
accompanied Dennis to the saloon, and later, to Dennis's motel room. Thereafter and until the murder, both
Dennis and Straumanis remained in an intoxicated state, staying in Dennis's room, except for a shared meal out
and Dennis's outings to get more alcohol.
__________

1

2
Following the interview, Dennis's blood alcohol level was tested and determined to be .112 and descending.
However, Dennis does not dispute the knowing and voluntary nature of his statements.
On the day he killed Straumanis, he left the room briefly because Straumanis was asking too many personal
questions. Upon his return to the room, he and Straumanis engaged in a conversation about whether Dennis had
ever killed anyone. Straumanis accused Dennis of being too kind to be capable of killing. Dennis then killed
Straumanis, as he and she were sort of making love.
He began strangling Straumanis with a belt. He felt somewhat aroused by Straumanis's struggling, and as she
was fading, he engaged in anal intercourse with her. During the course of the killing, he took the belt off and
used his hands to choke her, and then suffocated her by covering her nose and mouth, making sure that she was
not breathing and that it was all done. He was not certain whether he finished the sexual act once she was
dead. It took five or ten minutes to kill Straumanis, and Dennis checked her pulse afterward. He felt that he had
to make sure, so he took [his] time.
After the murder, Dennis covered Straumanis's body and slept in the other bed. Prior to contacting police,
Dennis also left the room at times to go to a local casino or the store for more liquor.
Dennis admitted that, although he had been drinking heavily prior to the murder and had stopped taking the
medications prescribed for his mental health problems, he knew exactly what [he] was doing at the time of the
murder. He killed Straumanis primarily because she challenged whether he was capable of killing, but also in
response to a challenge from Straumanis regarding his sexual performance, which was affected by his drinking,
and because he knew that he could kill hershe was nobody to him. He explained that he was probably
thinking that Straumanis needed to be put out of her misery from the time he first met her and realized that she
was pathetic. He stated, [W]hen I first met her, I had that . . . idea that if you know I can talk her into . . .
coming back to my crib then done deal. Done deal. He saw himself as a predator and Straumanis as a
victim, and he felt that killing her was the thing to do. Dennis had recently picked up another woman,
intending to do the same thing to her, but she got frightened and left him before he could finish. From that
experience he had learned to [t]ake it a little slower, and he did so with Straumanis, trying to charm her into
staying with him. Dennis was determined to kill Straumanis regardless of whether she survived his initial attack.
He had been wanting to kill someone for a long time, and he felt at peace with killing Straumanis. Dennis stated
that he did not care about anybody, including himself. He knew murder was wrong and did not care. Dennis also
told detectives, [I]f I didn't get stopped this would not be the last time that I would do something like
this, because I found it exciting.
I would do something like this, because I found it exciting. I actually enjoyed it.
At the conclusion of the interview, detectives formally placed Dennis under arrest.
Meanwhile, another RPD detective searched Dennis's motel room pursuant to a search warrant. There, the
detective discovered Straumanis's nude dead body underneath a blanket on one of the two beds in the room.
Straumanis's body was found in a prone position with spread legs. A pillow underneath Straumanis's pelvis
caused her buttocks to protrude upward. The detective also discovered a leather belt on the floor of the motel
room and numerous empty beer and Vodka containers, along with other debris.
An autopsy performed on Straumanis's body on March 10, 1999, showed that she had died between three and
seven days earlier as a result of asphyxia due to neck compression, most likely by strangulation. Straumanis's
neck bore a rectangular-shaped injury. Other injuries were determined to have occurred sometime within the few
days prior to her death, including a small abrasion on the forehead, a bruise on the back of one thigh, and a
fractured sternum. Changes caused by decomposition of Straumanis's body made determination of the existence
of any sexual assault difficult. Although Straumanis's anus was dilated, there was no evidence of injury to the
perianal skin or distal rectum. Testing revealed that Straumanis had a blood alcohol content of 0.37.
The State charged Dennis by information with one count of first-degree murder with the use of a deadly
weapon. The State subsequently filed a notice of intent to seek the death penalty, alleging four aggravating
circumstances: that Dennis subjected Straumanis to nonconsensual sexual penetration immediately before,
during or immediately after the commission of the murder, and that Dennis had been previously convicted of
three separate felonies involving the use or threat of violence to the person of anothera 1979 conviction for
second-degree assault, a 1984 conviction for second-degree assault, and a 1984 conviction for second-degree
arson.
Counsel were appointed to represent Dennis and arranged to have a psychiatrist conduct a competency
evaluation. The psychiatrist who conducted the evaluation concluded that, although Dennis was clinically
depressed, he was competent to stand trial and assist in his defense.
On April 16, 1999, Dennis entered a guilty plea to first-degree murder with the use of a deadly weapon
pursuant to a written plea agreement. The district court thoroughly canvassed Dennis, who stated his desire to
plead guilty though he faced a possible death penalty. Dennis explained that he had been in prison twice before
and did not consider living in prison to be "living at all."
and did not consider living in prison to be living at all. He did not want to waste away in prison for the
remainder of his life, and would rather get it over faster than that. Ultimately, the court accepted Dennis's plea,
finding that Dennis was competent to enter a plea and that his plea was knowing and voluntary.
On July 19 and 20, 1999, a penalty hearing was conducted before a three-judge panel of the district court.
The State presented evidence relating to the facts and circumstances of Straumanis's death, including Dennis's
own statements regarding the crime and evidence in support of the alleged aggravating circumstances. The panel
was also informed that Dennis had a total of nine prior convictions: the three prior felony convictions alleged as
aggravators, for which he served approximately two and one-half years in prison, and another older felony
conviction for possession of a controlled substance, for which he served two years in prison. Dennis also had
five prior misdemeanor convictions.
Dennis agreed to permit counsel to argue for a sentence less than death and submit a sentencing
memorandum along with medical, psychiatric and jail records.
3
However, he expressed to the panel that he did
not want to live in prison for the rest of his life, and he declined to present any additional evidence in mitigation
or make any further statement in allocution.
Dennis's records together with the panel's questioning of Dennis show that Dennis has a lengthy history of
alcohol and substance abuse as well as suicide attempts. He first attempted suicide in 1965 and was hospitalized.
However, it does not appear that Dennis was diagnosed with or treated for any mental health disorders until
thirty years later. In 1995, he began a series of contacts with mental health professionals and was diagnosed with
various disordersprimarily, a chronic depressive disorder.
4
The same records show that Dennis was treated
for his problems at various facilities by means of prescription drugs and therapy. Although he enjoyed periods of
improved well being, he repeatedly discontinued his medications, declined further treatment and continued to
consume alcohol against his doctors' advice.
__________

3
The State stipulated to the admission of the memorandum and documents offered by the defense to show
mitigation.

4
Beginning in 1995, Dennis began a series of hospitalizations and outpatient treatments for various problems
including Hepatitis C, alcohol abuse, recurrent depressive disorder, suicidal ideation and attempts, antisocial
personality disorder, post-traumatic stress disorder attributed to abuse Dennis reported suffering as a child,
bipolar disorder, and anger management problems. In 1995, Dennis also reported having audio hallucinations
and was diagnosed with having a substance-induced psychotic disorder at the time of one admission for
hospitalization. When receiving medical treatment subsequent to 1995, however, Dennis denied having any
hallucinations, and it does not appear that Dennis's care providers noted any indications to the contrary.
Included among the medical records submitted were Veteran's Administration (VA) records, which
indicate that two months prior to killing Straumanis, Dennis was admitted to the VA Hospital in Reno when he
reported to medical staff that he had stopped taking his medications and was trying to drink himself to death. He
also reported picking up a girl the previous night, taking her to a motel, and having thoughts of killing her. At
the time he was admitted, Dennis exhibited bizarre behavior, talking and answering to himself. However, he was
discharged from the hospital after eight days. Reports from follow-up visits with VA medical personnel in
February and on March 2, 1999, show no indication of any alarming behavior by Dennis and further show that
he denied wanting to harm himself or others.
Counsel argued against a death sentence and alleged as mitigating factors that the murder was committed
while Dennis was under the influence of extreme mental or emotional disturbance, see NRS 200.035(2), as well
as numerous other circumstances, see NRS 200.035(7). The panel found that Dennis made a knowing and
voluntary waiver of the right to present further mitigating evidence or make any further statement in allocution.
After hearing argument, the panel found that three of the four alleged aggravators were established: the three
prior felony convictions. The panel also found two mitigating circumstances: Dennis was under the influence of
alcohol when he killed Straumanis, and he suffers from mental illness. The panel concluded that the mitigating
circumstances did not outweigh the aggravating circumstances and returned a verdict of death. Dennis timely
appealed.
DISCUSSION
Dennis argues only that his sentence of death is excessive. However, where a sentence of death has been
imposed, NRS 177.055(2) requires this court to review the record and consider in addition to any errors
enumerated on appeal:
We address each of these considerations in turn.
Whether the evidence supports the three-judge panel's finding of aggravating circumstances
[Headnote 1]
The panel found that the State had proved three aggravating circumstances: three prior felony
convictions involving the use or threat of violence to the person of another.
cumstances: three prior felony convictions involving the use or threat of violence to the person of another. See
NRS 200.033(2)(b).
The record shows that in support of the 1979 felony assault conviction alleged as an aggravator, the State
presented police reports, a certified copy of the judgment of conviction from the State of Washington, and
testimony from the assault victim. This evidence showed that in December 1978, Dennis became intoxicated,
argued with his girlfriend over his unemployment and threatened to kill her. He then held her up against a door
and put a knife to her neck. During the altercation, he ripped the knife blade through her hand, saying, [H]urts,
don't it? Although she managed to escape, the attack left her hand scarred. Police subsequently arrested Dennis
at a local barroom frequented by him. He was thereafter convicted of second-degree felony assault and sentenced
to a ten-year term of imprisonment, suspended for a five-year term of probation.
In support of the 1984 felony assault and felony arson convictions, each alleged as aggravators, the State
presented police reports, certified copies of the judgments of conviction from the State of Washington, and
testimony from victims. This evidence showed that in December 1983, Dennis had a personal relationship with a
woman, Bonnie, whose daughter, Lana, was sixteen years old. Lana and Dennis had been involved in a
dispute stemming from an incident when Dennis went on a rampage and kicked in the door of Bonnie's home
while Lana and her siblings were present. A couple of days after this incident, Lana was at the home of a family
friend. As the two were watching television and eating dinner, Dennis lit the home on fire. When Lana became
aware of the fire, she contacted police.
When confronted by police responding to the arson report, Dennis acted as if he did not know what had
precipitated a police response. He then swung a knife at an officer. Even after surrounded by five officers, he
refused to drop the knife, saying that he wanted to make a point. He made menacing gestures with the knife
toward each of the responding officers and threatened to stab anybody who tried to take his knife. He challenged
the officers to shoot him and challenged a canine officer to let his dog loose so that Dennis could stab the dog.
Dennis then lunged and thrust his knife at the canine officer, and was shot. Notably, although Dennis smelled of
alcohol at the time of his arrest, the arresting officer reported there was no indication that Dennis was intoxicated
or not in control of himself at the time of the assault. Dennis was convicted of one count each of second-degree
assault and second-degree arson. He was sentenced to ten years of imprisonment on each count, to be served
concurrently with each other, and consecutively to the sentence for the 1979 assault
conviction, for which his probation was revoked.
other, and consecutively to the sentence for the 1979 assault conviction, for which his probation was revoked.
We conclude that this evidence is sufficient to prove each of the three aggravating circumstances found by
the panel. See generally Parker v. State, 109 Nev. 383, 393, 849 P.2d 1062, 1068 (1993).
Whether the sentence of death was imposed under the influence of passion, prejudice or any arbitrary factor
[Headnote 2]
The panel considered evidence of the crime, the background and characteristics of Dennis, and both the
aggravating and mitigating circumstances. The panel then concluded that the aggravating circumstances
outweighed the mitigating and a death sentence was appropriate. Our review of the record reveals no evidence
that the panel imposed the death sentence under the influence of passion, prejudice or any other arbitrary
factor.
Whether the sentence of death is excessive
Dennis contends that his sentence of death is excessive. He asks this court to compare his background,
character, crime, and the mitigating and aggravating circumstances found in his case to those of defendants in
other first-degree murder cases where we have either affirmed the judgment of death or determined the death
penalty to be excessive. He contends that under this comparative review, his death sentence must be vacated
because the relevant sentencing factors in his case are most similar to those in two cases where we concluded
that the death penalties were excessive: Haynes v. State, 103 Nev. 309, 739 P.2d 497 (1987), and Chambers v.
State, 113 Nev. 974, 944 P.2d 805 (1997).
The State argues that the comparative review sought by Dennis is unnecessary and suggests that such a
review is tantamount to proportionality review, which was formerly required by NRS 177.055(2)(d), but was
abolished by our Legislature in 1985. See 1985 Nev. Stat., ch. 527, 1, at 1597.
Thus, we must determine whether the comparative review of death penalty cases has any proper role in our
excessiveness analysis under NRS 177.055(2)(d). From 1977 through 1985, NRS 177.055(2)(d) required that on
appeal from a judgment of death, this court must consider [w]hether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases in this state, considering both the crime and the
defendant. 1977 Nev. Stat., ch. 585, 10, at 1545; 1985 Nev. Stat., ch. 527, 1, at 1597. Proportionality
review required that we compare all [similar] capital cases [in this state], as well as appealed murder cases in
which the death penalty was sought but not imposed, and set aside those death sentences which appear
comparatively disproportionate to the offense and the background and characteristics of the
offender."
disproportionate to the offense and the background and characteristics of the offender. Harvey v. State, 100
Nev. 340, 342, 682 P.2d 1384, 1385 (1984).
However, in 1984, the United States Supreme Court decided Pulley v. Harris, 465 U.S. 37, 43-44, 50-51
(1984), holding that the Eighth Amendment to the United States Constitution
5
does not require a
proportionality review of death sentences, i.e., an inquiry into whether the death penalty is unacceptable in a
particular case because it is disproportionate to the punishment imposed on others similarly situated. The
following year, the Nevada Legislature amended NRS 177.055(2)(d) to repeal the proportionality review
requirement. See 1985 Nev. Stat., ch. 527, 1, at 1597. In its current form, NRS 177.055(2)(d) provides only
that this court must consider on appeal from a judgment of death [w]hether the sentence of death is excessive,
considering both the crime and the defendant.
[Headnote 3]
We have recognized that pursuant to the 1985 amendment to NRS 177.055(2)(d), this court no longer
conducts proportionality review of death sentences. See, e.g., Thomas v. State, 114 Nev. 1127, 1148, 967 P.2d
1111, 1125 (1998), cert. denied, 528 U.S. 830 (1999); Guy v. State, 108 Nev. 770, 784, 839 P.2d 578, 587
(1992). Instead, we review a death penalty for excessiveness considering only the crime and the defendant at
hand. Guy, 108 Nev. at 784, 839 P.2d at 587.
In dispensing with proportionality review, we have recognized that penalties imposed in other similar cases
in this state are irrelevant to the excessiveness analysis now required by NRS 177.055(2)(d). See id.
Nonetheless, we have not entirely abandoned comparative review as part of that analysis. As noted by Dennis, in
Chambers, 113 Nev. at 984-85, 944 P.2d at 811-12, we considered whether the imposition of a death sentence
was warranted based upon comparisons between Chambers and his crime and defendants and crimes in other
cases in which we have reviewed judgments of death. Specifically, we compared and found that the
circumstances of the crime and defendant in Chambers were similar to those in two cases where we had
determined the death penalty was excessive: Haynes and Biondi v. State, 101 Nev. 252, 699 P.2d 1062 (1985).
Chambers, 113 Nev. at 985, 944 P.2d at 811. We also compared the circumstances of the murder and the
defendant in [Chambers] with the circumstances in other cases in which this court has affirmed the death
penalty. Id. at 984, 944 P.2d at 811. After considering the crime and defendant in Chambers, and in light of our
comparative review, we ultimately concluded that the sentence of death was excessive.
__________

5
U.S. Const. amend. VIII.
review, we ultimately concluded that the sentence of death was excessive. Id. at 984-85, 944 P.2d 811-12.
[Headnote 4]
Nonetheless, Chambers does not stand for the proposition that this court will conduct proportionality review
of death sentences as part of the excessiveness analysis despite the Legislature's abolishment of such review. The
fact that others guilty of first-degree murder may have received greater or lesser penalties does not mean that a
defendant whose crime, background and characteristics are similar is entitled to receive a like sentence.
However, as apparent in Chambers, our determinations regarding excessiveness of the death sentences of
similarly situated defendants may serve as a frame of reference for determining the crucial issue in the
excessiveness analysis: are the crime and defendant before us on appeal of the class or kind that warrants the
imposition of death? See NRS 177.055(2)(d) (court must consider whether sentence of death on appeal is
excessive, considering both the crime and the defendant). This inquiry may involve a consideration of whether
various objective factors, which we have previously considered relevant to whether the death penalty is
excessive in other cases, are present and suggest the death sentence under consideration is excessive.
We conclude that, even using as a frame of reference the factors considered relevant to excessiveness in
Chambers and Haynes, the cases upon which Dennis relies, the death penalty is not excessive here.
In Haynes, we relied on several objective factors to determine that the death sentence was excessive, i.e., the
killing in that case was crazy' and motiveless; the defendant, Haynes, was a mentally disturbed person
lashing out irrationally, and probably delusionally, and striking a person he did not know and probably had never
seen before; and the single aggravating circumstance, a prior felony conviction for armed robbery, was fifteen
years old at the time of the crime and committed by Haynes when he was eighteen years old. 103 Nev. at 319,
739 P.2d at 503. We concluded that the case was comparable to Biondi v. State, 101 Nev. 252, 699 P.2d 1062
(1985), where the defendant killed a man in a barroom confrontation among strangers in an emotionally charged
atmosphere, and where the only aggravating circumstance was a prior conviction for armed robbery.
6
Haynes,
103 Nev. at 319, 739 P.2d at 503. We noted that in Biondi, we had reduced the death sentence to life
without the possibility of parole.
__________

6
Although Haynes was decided after the Legislature abolished proportionality review, we nevertheless
conducted such a review because the crime in that case was committed two days before proportionality review
was abolished. Haynes, 103 Nev. at 319 n.5, 739 P.2d at 504 n.5.
the death sentence to life without the possibility of parole.
7
Id. We finally concluded that Haynes did not
deserve the death penalty. Id.
As noted previously, we likewise determined the sentence of death was excessive in Chambers, after
concluding the case was comparable to Haynes and Biondi. Chambers, 113 Nev. at 984-85, 944 P.2d at 811-12.
In doing so, we relied on several objective factors, including that Chambers murdered the victim in a drunken
state, which indicated no advanced planning, during an emotionally charged confrontation in which Chambers
was wounded and his professional tools were being ruined. Id. at 985, 944 P.2d at 811-12. We further noted that
the only valid aggravating factor in Chambers, prior felony convictions for robberies, referred to crimes that
occurred eighteen years before the verdict in question, when Chambers was eighteen years old, which hardly
shows a pattern of violence sufficient to justify the death penalty. Id. at 984-85, 944 P.2d at 811.
[Headnote 5]
Considering Dennis and his crime, we conclude that the objective factors relied on in Haynes and Chambers
do not indicate the death penalty is excessive here. Dennis deliberately strangled Straumanis over the course of
five to ten minutes and made efforts to assure her death. Unlike the defendants in Haynes and Chambers,
evidence here shows a high degree of callousness and premeditation by Dennis. Dennis disputes this on appeal,
suggesting that the evidence obtained during his interview with RPD should be discounted because much of what
he said during his interview was puffing and macho-image making, designed to make detectives take
seriously his desire to be put to death.
8
However, Dennis's account of the crime is not inconsistent with the
physical evidence. No evidence indicates that Dennis exaggerated the willful, premeditated and deliberate nature
of the crime or that his callous indifference toward Straumanis was contrived. No evidence shows that the killing
was the result of uncontrollable, irrational or delusional impulses or occurred during an emotionally charged
physical confrontation. Accordingly, neither Dennis's mental illness nor his being under the influence of alcohol
at the time of the crime renders his death penalty excessive. Cf. DePasquale v. State, 106 Nev. 843, 803 P.2d
218 {1990) {death sentence not excessive although defendant had history of mental
illness);
__________

7
In Biondi, we vacated the death sentence of the defendant because the penalty was disproportionate to
sentences received in similar cases, including the codefendant's case. Biondi, 101 Nev. at 258-60, 699 P.2d at
1066-67.

8
In support of this, he points to his statements during the interview showing that at the time of the interview,
he was suffering the effects of alcohol withdrawal, and his statements exaggerating his prior military experience
and falsely indicating that he had killed others before Straumanis.
(1990) (death sentence not excessive although defendant had history of mental illness); Geary v. State, 115 Nev.
79, 977 P.2d 344 (1999) (death sentence not excessive where defendant was in drunken rage when he killed
victim), cert. denied, 529 U.S. 1090 (2000).
Further, in this case, the prior felony convictions found as aggravating circumstances demonstrate that
Dennis is a dangerous and violent man. There is no indication that these crimes were committed during any
physical confrontation or that Dennis was irrational, delusional or unable to control his actions at the time. One
of the aggravating prior felonies was committed twenty-one years, and the others, sixteen years, before
Straumanis's murder. Unlike the single valid prior felony aggravating circumstance in Haynes or Chambers, here
the prior felonies are not isolated instances, but are part of a continuing pattern of violence, spread out over time
and increasing in severity. Also, Dennis committed his first prior felony when in his early thirties and committed
his second and third prior felonies when in his late thirties. Therefore, these felonies demonstrate Dennis's
proclivity for violent crime, and their significance in this respect cannot reasonably be diminished by immature
judgment at the time of the crimes.
The record demonstrates that Dennis committed a calculated, cold-blooded and unprovoked killing and has a
propensity toward violent behavior. We have affirmed the death penalty in similar cases. See, e.g., McKenna v.
State, 114 Nev. 1044, 968 P.2d 739 (1998), cert. denied, 528 U.S. 937, 120 S. Ct. 342 (1999); see also Leslie v.
State, 114 Nev. 8, 952 P.2d 966, cert. denied, 525 U.S. 860 (1998); Pellegrini v. State, 104 Nev. 625, 764 P.2d
484 (1988). After considering Dennis's contentions on appeal, we conclude that the death penalty is not
excessive in this case.
CONCLUSION
Our review of this appeal demonstrates that the evidence supports the finding of aggravating circumstances,
the sentence of death was not imposed under the influence of passion, prejudice or any arbitrary factor, and the
sentence of death is not excessive, considering Dennis and his crime. Accordingly, we affirm the judgment of
conviction and sentence of death.
Rose, C. J., Young, Maupin, Shearing, Agosti and Leavitt, JJ., concur.
____________
116 Nev. 1088, 1088 (2000) Foster v. State
TROY ANTHONY FOSTER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 32904
December 4, 2000 13 P.3d 61
Appeal from a judgment of conviction, pursuant to a jury verdict, of unlawful sale of a controlled substance.
Second Judicial District Court, Washoe County; Janet J. Berry, Judge.
Defendant was convicted, after a jury trial in the district court of unlawful sale of crack cocaine, a controlled
substance. Defendant appealed. The supreme court, Agosti, J., held that: (1) under the entrapment defense, the
police are not required to have reasonable cause to believe that an individual is predisposed to commit the crime
before the police target the individual for an undercover operation, overruling Shrader v. State, 101 Nev. 499,
706 P.2d 834 (1985), and Roberts v. State, 110 Nev. 1121, 881 P.2d 1 (1994); (2) instruction presenting factors
relevant in determining predisposition to commit the crime was proper; and (3) evidence of defendant's prior
conviction for possession of marijuana was admissible to show predisposition to sell drugs.
Affirmed.
Michael R. Specchio, Public Defender, John Reese Petty, Chief Deputy Public Defender, and Vaun B.
Hall, Deputy Public Defender, Washoe County, for Appellant.
Joseph R. Plater, Deputy District Attorney, Washoe County, for Respondent.
1. Criminal Law.
Entrapment is an affirmative defense.
2. Criminal Law.
The defendant bears the burden of producing evidence of governmental instigation, for purposes of an entrapment
defense.
3. Criminal Law.
Once a defendant who presents an entrapment defense puts forth evidence of governmental instigation, the State bears the
burden of proving that the defendant was predisposed to commit the crime.
4. Criminal Law.
Under the entrapment defense, the police are not required to have reasonable cause to believe that an individual is
predisposed to commit the crime before the police target the individual for an undercover operation, overruling Shrader v.
State, 101 Nev. 499, 706 P.2d 834 (1985), and Roberts v. State, 110 Nev. 1121, 881 P.2d 1 (1994).
5. Criminal Law.
Undercover officer's lack of reasonable cause to believe that defendant was predisposed to sell drugs before she
approached him with her question, "Got forty?" was not entrapment.
dant was predisposed to sell drugs before she approached him with her question, Got forty? was not entrapment.
6. Criminal Law.
The entrapment defense is made available to defendants not to excuse their criminal wrongdoing but as a prophylactic device
designed to prevent police misconduct.
7. Criminal Law.
Factors relevant in determining predisposition to commit the crime, for purposes of an entrapment defense, include: (1) the
character of the defendant; (2) who first suggested the criminal activity; (3) whether the defendant engaged in the activity for profit; (4)
the nature of the government's inducement; and, as the most important factor, (5) whether the defendant demonstrated reluctance.
8. Criminal Law.
When a defendant raises the defense of entrapment, he places his predisposition to commit the crime in issue.
9. Criminal Law.
A district court should always use caution when admitting evidence of another crime because of the inherently prejudicial nature
of such evidence. NRS 48.035(1), 48.045(2), 48.055.
10. Criminal Law.
When a defendant raises the entrapment defense at trial, evidence of a prior crime may be admitted to show that the defendant was
predisposed to commit the instant offense, where: (1) the other crime is of a similar character to the offense on which the defendant is
being tried, (2) the other crime is not too remote in time from the offense charged, and (3) the probative value of the other crime is not
substantially outweighed by the danger of unfair prejudice. NRS 48.035(1), 48.045(2), 48.055.
11. Criminal Law.
Defendant's earlier conviction for possession of marijuana was of similar character to the charged offense in later prosecution for
sale of crack cocaine, as element for admission of evidence of a prior conviction to show predisposition in a case in which an
entrapment defense is asserted, where the evidence in the earlier prosecution showed that defendant possessed twenty-one plastic bags
of marijuana for the purpose of selling them. NRS 48.045(2), 48.055.
12. Criminal Law.
Defendant's conviction, eight years earlier, for possession of marijuana was not too remote in time to be relevant, in a later
prosecution for possession of crack cocaine in which defendant asserted an entrapment defense, to the issue of defendant's
predisposition to sell drugs. NRS 48.045(2), 48.055.
13. Criminal Law.
Probative value of evidence of defendant's earlier conviction for possession of marijuana was not substantially outweighed by risk
of unfair prejudice in later prosecution for sale of crack cocaine. The evidence was relevant to defendant's predisposition to sell drugs,
which was put at issue when defendant asserted an entrapment defense, little time was expended in presenting the evidence, and jury
was instructed it could not consider evidence of the earlier conviction to show that defendant acted in conformity with the bad trait of
character on the later occasion. NRS 48.035(1), 48.045(2), 48.055.
OPINION
The issues in this appeal concern the defense of entrapment. A jury found appellant Troy Anthony
Foster guilty of unlawful sale of a controlled substance after Foster sold crack cocaine to an undercover
officer. On appeal, Foster contends that: (1) he was entrapped as a matter of law because the undercover
officer did not have reasonable cause to believe Foster was predisposed to sell drugs before approaching
him; (2) the district court did not properly instruct the jury on the defense of entrapment; and (3) the
district court erred by admitting evidence of his eight-year-old conviction for possession of a controlled
substance on the issue of his predisposition to commit the instant offense.
To the extent that our prior case law required police to have reasonable cause to believe an individual
is predisposed to commit a crime before targeting that individual in the context of an undercover
operation, it is overruled. Therefore, we conclude that Foster was not entrapped as a matter of law. We
further conclude that the district court properly instructed the jury on the defense of entrapment.
Finally, we conclude that testimony concerning the circumstances of Foster's prior conviction for
possession of a controlled substance was properly admitted to prove his predisposition to commit the
charged offense.
FACTS
The Consolidated Narcotics Unit (CNU)
1
received complaints from police officers, casino managers
and tourists about black males selling crack cocaine in the area of Second Street and Virginia Street in
downtown Reno, Nevada. In response to these complaints, the CNU conducted a buy program to
apprehend the drug dealers.
A female undercover officer walked in the targeted area in an attempt to purchase crack cocaine from
black males.
2
The officer made eye contact with Foster, a black male, who was standing with four other
men. The officer asked Foster, Got forty? Apparently, this is the street vernacular for asking someone if
they have forty dollars worth of crack cocaine for sale. Foster approached the officer and asked her what she
wanted. The officer repeated, "Got forty?"
__________

1
The Consolidated Narcotics Unit is composed of officers from the Washoe County Sheriff's Department,
Reno Police Department, Sparks Police Department and federal agents from the Drug Enforcement Agency.

2
Foster does not contend on appeal that the CNU used any improper racial profiling.
cer repeated, Got forty? Foster then told her to walk this way. After Foster and the officer walked
approximately fifteen to twenty feet, Foster spat out a bag containing crack cocaine into his hands and gave it to
the officer. The officer gave Foster forty dollars, and they separated. Other CNU officers subsequently arrested
Foster.
At trial, Foster argued that he was entrapped because the CNU did not have reasonable cause to believe
Foster was predisposed to sell drugs before approaching him. Following a two-day trial, a jury convicted Foster
of unlawful sale of a controlled substance.
DISCUSSION
Reasonable cause requirement
Relying on Shrader v. State, 101 Nev. 499, 706 P.2d 834 (1985), Foster contends that he was entrapped as a
matter of law. He argues in the alternative that the district court failed to properly instruct the jury on the law
of entrapment. His identification of these issues causes us to critically review our case law concerning the
entrapment defense.
[Headnotes 1-4]
As we have often recognized, entrapment is an affirmative defense. See id. at 504, 706 P.2d at 837. The
defendant bears the burden of producing evidence of governmental instigation. See id. Once the defendant puts
forth evidence of governmental instigation, the State bears the burden of proving that the defendant was
predisposed to commit the crime. See id. Essentially, the defendant bears the burden of production on the first
element, while the prosecution subsequently bears the burden of proof on the second element. Id. at 504, 706
P.2d at 837-38. We do not modify this two-part inquiry, which is well settled. We do, however, abandon the rule
enunciated in Shrader that when the police target a specific individual for an undercover operation, they must
have reasonable cause to believe that the individual is predisposed to commit the crime. Id. at 501-02, 706 P.2d
at 836.
More recently, this court reiterated that [i]n Nevada, a person's predisposition to commit a crime must be
evident before he is targeted, and the authorities must possess reasonable cause to believe the individual is
predisposed to commit the crime.' Roberts v. State, 110 Nev. 1121, 1132 n.7, 881 P.2d 1, 8 n.7 (1994)
(quoting Shrader, 101 Nev. at 502, 706 P.2d at 836) (emphasis added).
Generally, other jurisdictions have readily rejected a reasonable cause requirement.
3
See, e.g., United States
v. Aibejeris, 28 F.3d 97, 99 {11th Cir. 1994); see generally Paul Marcus, The Entrapment
Defense S.04 {2d ed. 1995).
__________

3
As support for the reasonable cause requirement, the Shrader court relied on Smith v. State, 281 N.E.2d 803,
805 (Ind. 1972), which stated that
97, 99 (11th Cir. 1994); see generally Paul Marcus, The Entrapment Defense 8.04 (2d ed. 1995). As the court
explained in United States v. Catanzaro, 407 F.2d 998, 1001 (3d Cir. 1969), [t]he basic question in an alleged
entrapment case is whether the accused was ready and willing to commit the crime if an opportunity should be
presented . . . . No significant purpose would be served by a further showing of [the police agent's] reason for
approaching him.
[Headnote 5]
Nevada is in the minority if not the only remaining jurisdiction that imposes a requirement of reasonable
cause to believe an individual is predisposed to commit a crime before he or she can be targeted in an
undercover operation. Applying this unique requirement to the facts of this case would require us to reverse
Foster's conviction because in reality the officer had no reasonable cause to suspect Foster was predisposed to
sell drugs before she approached him with her question, Got forty? Yet, the police conduct in this case was not
unreasonable. Nor can it be characterized as overreaching. Application of the rule to these facts does nothing to
deter police misconduct. As can be seen from the facts of this case, adherence to the reasonable cause
requirement has the undesirable effect of hampering members of law enforcement in fulfilling their legitimate
roles of detecting and preventing criminal activity. We certainly do not condone overreaching or other improper
conduct by the police in carrying out their responsibilities. However, we believe the well-settled law of
entrapment, which requires the defendant to show evidence of police initiated activity and a consequential
showing by the State of the defendant's criminal predisposition, is sufficient protection against the possibility of
police excess.
[Headnote 6]
We now believe that the reasonable cause requirement is unnecessary to further the policy supporting the use
of the entrapment defense. As this court explained:
The entrapment defense is made available to defendants not to excuse their criminal wrongdoing but as a
prophylactic device designed to prevent police misconduct. The function of law enforcement is the
prevention of crime and the apprehension of criminals.
__________
before the State sets into operation a scheme to trap a particular suspect, there must be probable cause for the
suspicions. Smith has been overruled. See Hardin v. State, 358 N.E.2d 134, 135 (Ind. 1976). In Hardin, the
court recognized that the probable cause to suspect requirement has proven more difficult in its application than
originally believed and no longer should be an additional burden upon law enforcement officials as they combat
the trafficking in drugs. Id.
hension of criminals. Manifestly, that function does not include the manufacturing of crime.
Shrader, 101 Nev. at 501, 706 P.2d at 835 (quoting Sherman v. United States, 356 U.S. 369, 372 (1958)). We
conclude that the reasonable cause requirement unduly restricts reasonably designed police undercover
operations implemented to ferret out crime. In the instant case, the CNU conducted the buy program in
response to a specific problem occurring in downtown Reno. The CNU did not manufacture Foster's crime. We
believe that the reasonable cause requirement is unwarranted as a prophylactic device to prevent police
misconduct.
Jury instructions on entrapment
[Headnote 7]
Foster also contends that the district court erroneously instructed the jury in regard to his entrapment
defense. The record indicates that the district court properly instructed the jury on the defense of entrapment.
4
We take this opportunity, however, to separately comment on Instruction No. 19, which instructed the jury to
consider specific factors in determining whether Foster was predisposed to sell drugs. Instruction No. 19 stated:
Five factors are relevant in determining predisposition:
(1) the character of the defendant;
(2) who first suggested the criminal activity;
(3) whether the defendant engaged in the activity for profit;
(4) whether the defendant demonstrated reluctance, and;
(5) the nature of the government[']s inducement.
Of these five factors, the most important is whether the defendant demonstrated reluctance which was
overcome by the government's inducement.
Instruction No. 19 is directly quoted from United States v. Skarie, 971 F.2d 317, 320 (9th Cir. 1992). We
have not previously approved of a jury instruction which lists factors relevant in determining the predisposition
of a defendant. However, we conclude that this instruction was proper and helpful to the jury. Moreover, we
note that the factors listed in Instruction No. 19 are not exclusive. Other jurisdictions have adopted additional
factors to consider in determining a defendant's predisposition. See, e.g., United States v. Dion, 762 F.2d
674, 6S7-SS {Sth Cir. 19S5), rev'd on other grounds, 476 U.S. 734 {19S6).
__________

4
Some of Foster's contentions concerning jury instructions related to the reasonable cause requirement
enunciated in Shrader. Because we overrule Shrader on this point, we do not address the district court's rejection
of these instructions.
United States v. Dion, 762 F.2d 674, 687-88 (8th Cir. 1985), rev'd on other grounds, 476 U.S. 734 (1986).
5

Evidence of prior conviction
Foster's final contention is that the district court erred by allowing the State to introduce evidence
concerning his eight-year-old conviction for possession of a controlled substance to prove that Foster had a
predisposition to sell drugs. At trial, the district court admitted evidence regarding Foster's previous conviction
for possession of a controlled substance. An officer testified that, in 1989, he obtained Foster's consent to
search his vehicle and found twenty-one baggies of marijuana. As a result, Foster was charged with possession
of a controlled substance with the intent to sell. However, pursuant to a plea agreement, Foster pleaded guilty
in 1990 to possession of a controlled substance.
[Headnote 8]
When a defendant raises the defense of entrapment, he places his predisposition to commit the crime in
issue. See Shrader, 101 Nev. at 504, 706 P.2d at 837. In the instant case, the district court relied upon NRS
48.045(2)
6
when it instructed the jury that it could not consider evidence of Foster's 1990 conviction to show
that Foster acted in conformity with this bad trait of character on this occasion, but could consider this
evidence on the issue of whether or not Foster was predisposed to sell drugs.
__________

5
The Eighth Circuit has identified the following ten factors relevant to the issue of a defendant's
predisposition:
(1) whether the defendant readily responded to the inducement offered;
(2) the circumstances surrounding the illegal conduct;
(3) the state of mind of a defendant before the government agents make any suggestion that the
defendant shall commit a crime;
(4) whether the defendant was engaged in an existing course of conduct similar to the crime for which
the defendant is charged;
(5) whether the defendant had already formed the design to commit the crime for which the defendant
is charged;
(6) the defendant's reputation;
(7) the conduct of the defendant during negotiations with the undercover agent;
(8) whether the defendant has refused to commit similar acts on other occasions;
(9) the nature of the crime charged;
(10) the degree of coercion which the law officers contributed to instigating the transaction relative to
the defendant's criminal background. Dion, 762 F.2d at 687-88 (citations omitted).

6
NRS 48.045(2) provides that:
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order
to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as
accident.
this occasion, but could consider this evidence on the issue of whether or not Foster was predisposed to sell
drugs. NRS 48.055 denominates the methods by which character may be proven as follows:
1. In all cases in which evidence of character or a trait of character of a person is admissible, proof
may be made by testimony as to reputation or in the form of an opinion. On cross-examination, inquiry
may be made into specific instances of conduct.
2. In cases in which character or a trait of character of a person is an essential element of a charge,
claim or defense, proof of specific instances of his conduct may be made on direct or cross-examination.
The Advisory Committee Note accompanying the 1975 version of Federal Rule of Evidence 405, upon
which NRS 48.055 is based, states:
Of the three methods of proving character provided by the rule, evidence of specific instances of
conduct is the most convincing. At the same time it possesses the greatest capacity to arouse prejudice, to
confuse, to surprise, and to consume time. Consequently the rule confines the use of evidence of this kind
to cases in which character is, in the strict sense, in issue and hence deserving of a searching inquiry.
[Headnotes 9, 10]
By raising the defense of entrapment, Foster placed his character directly in issue. Once Foster proffered
evidence of governmental instigation, the State was required to prove as an essential element of its case, Foster's
predisposition to commit the charged crime. The district court permitted the State to address a specific instance
of Foster's prior conduct by presenting testimony concerning the circumstances underlying Foster's 1990
conviction for possession of a controlled substance. Pursuant to NRS 48.055(2), the State was entitled to prove
Foster's predisposition by offering evidence of a specific instance of Foster's conduct. However the State's
entitlement is not without restriction, and the court's discretion to admit relevant character evidence is not
unfettered. NRS 48.035(1) requires that relevant evidence be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues or of misleading the jury. A district
court should always use caution when admitting evidence of another crime because of the inherently prejudicial
nature of such evidence. Therefore, we hold that when a defendant raises the entrapment defense at trial,
evidence of a prior crime may be admitted to show that the defendant was predisposed to
commit the instant offense where:
admitted to show that the defendant was predisposed to commit the instant offense where: (1) the other crime is
of a similar character to the offense on which the defendant is being tried; (2) the other crime is not too remote in
time from the offense charged; and (3) the probative value of the other crime is not substantially outweighed by
the danger of unfair prejudice.
7

[Headnote 11]
Although a conviction for possession of marijuana would not normally be relevant to the issue of a
defendant's predisposition to sell crack cocaine, the evidence showed that Foster possessed twenty-one baggies
of marijuana for the purpose of selling them. Therefore, we conclude that the evidence concerning Foster's 1990
conviction was of a similar character to the instant offense.
[Headnotes 12, 13]
In regard to the second factor, we conclude that Foster's 1989 conduct was not too remote in time to be
relevant to the issue of his predisposition to sell drugs in 1997. Finally, we do not perceive in this case that the
probative value of the State's evidence was substantially outweighed by the risk of unfair prejudice. The jury was
instructed that the evidence was to be considered on the issue of Foster's predisposition to commit the act
currently charged against him. The evidence was relevant to that issue and was not unduly inflammatory or
confusing. Little time was expended in presenting the evidence, and so no argument can be made that the jury's
focus was disproportionately trained to this incident rather than to the charged crime.
8
We conclude that the
evidence concerning Foster's 1989 incident which resulted in his conviction in 1990 was properly admitted.
CONCLUSION
We overrule Shrader to the extent that it requires the police to have reasonable cause to believe an
individual is predisposed to commit a crime before the police may target that individual in
the context of an undercover operation.
__________

7
The restrictions on proof of character under NRS 48.055(2) are not governed by our pronouncement in
Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), Tinch v. State, 113 Nev. 1170, 946 P.2d 1061 (1997), and
Qualls v. State, 114 Nev. 900, 961 P.2d 765 (1998). The additional protections against admissibility in those
cases are discrete to situations under NRS 48.045(2) where character may be used for non-character or other
purposes.

8
Citing United States v. Skarie, 971 F.2d 317 (9th Cir. 1992), Foster also argues that his conviction should be
reversed because the evidence of his 1990 conviction is legally insufficient, standing alone, to establish his
predisposition. We disagree. The evidence of Foster's predisposition was overwhelming. His conviction could be
sustained even without reference to the 1989 incident that resulted in his 1990 conviction. Also probative of
Foster's predisposition is that Foster immediately acknowledged the undercover officer's vernacular inquiry
regarding crack cocaine; Foster sold the drugs to the officer without importuning, urging or persuasion
whatsoever; Foster already had a baggie of wrapped crack cocaine in his mouth.
have reasonable cause to believe an individual is predisposed to commit a crime before the police may target
that individual in the context of an undercover operation. Therefore, we conclude that Foster was not entrapped
as a matter of law. We also conclude that the district court properly instructed the jury on the defense of
entrapment. Evidence concerning Foster's eight-year-old conviction for possession of a controlled substance was
properly admitted. Accordingly, we affirm the district court's judgment of conviction.
____________
THE STATE OF NEVADA, Appellant, v. BRYAN SCOTT FREESE, Respondent.
No. 33274
December 4, 2000 13 P.3d 442
Appeal from an order of the district court granting a post-conviction petition for a writ of habeas corpus.
Eighth Judicial District Court, Clark County; Michael L. Douglas, Judge.
Defendant brought post-conviction petition for writ of habeas corpus, alleging the inadequacy of the oral
canvass before he pleaded guilty to sexual assault upon minor under age sixteen. The district court granted the
petition. State appealed. The supreme court reversed. On reconsideration, the supreme court, Becker, J., held
that: (1) a ritualistic oral canvass of a defendant is not required before the trial court accepts a guilty plea,
overruling Koerschner v. State, 111 Nev. 384, 892 P.2d 942 (1995), and disapproving of Kidder v. State, 113
Nev. 341, 934 P.2d 254 (1997); and (2) trial court's failure, during the oral canvass, to ask defendant if he
understood what rights he was waiving and to review the elements of the crime, did not make the plea
involuntary or unknowing.
Agosti, J., with whom Rose, C. J., and Leavitt, J., agreed, dissented.
Tufteland, Chief Deputy District Attorney, Clark County, for Appellant.
Carmine J. Colucci, Las Vegas, for Respondent.
1. Criminal Law.
The acceptance of a plea of guilty is a solemn duty, and a colloquy between a judge and a defendant is necessary before a judge
can accept a plea of guilty.
2. Criminal Law.
A colloquy between the judge and the defendant is a constitutional mandate to ensure that a court has sufficient information to
conclude that a defendant understands the consequences of a plea as well as the nature of the offenses. Only then can a court determine
that the defendant has freely, voluntarily, and knowingly decided to plead guilty.
3. Criminal Law.
A court may not rely solely on a written plea agreement, without conducting a colloquy with defendant, before accepting a plea of
guilty.
4. Criminal Law.
A ritualistic oral canvass of a defendant, with specific inquiries made by the trial court, is not required before the trial court
accepts a guilty plea, and the failure to conduct such a canvass does not mandate a finding of an invalid plea, overruling Koerschner v.
State, 111 Nev. 384, 892 P.2d 942 (1995), and disapproving of Kidder v. State, 113 Nev. 341, 934 P.2d 254 (1997).
5. Criminal Law.
The appellate court will not invalidate a plea as long as the totality of the circumstances, as shown by the record, demonstrates that
the plea was knowingly and voluntarily made and that the defendant understood the nature of the offense and the consequences of the
plea.
6. Criminal Law.
A defendant's comprehension of the consequences of a plea, the voluntariness of a plea, and the general validity of a plea are to be
determined by reviewing the entire record and looking to the totality of the facts and circumstances surrounding the plea.
7. Criminal Law.
A court must be able to conclude from the oral canvass, any written plea memorandum, and the circumstances surrounding the
execution of the memorandum, such as whether the defendant read it and whether the defendant had any questions about it, that the
defendant's plea was freely, voluntarily, and knowingly made, but no specific formula for making this determination is required, and
each case must be decided upon the facts and circumstances of that case.
8. Criminal Law.
Defendant's waiver of rights by pleading guilty to sexual assault upon minor under age sixteen was freely, voluntarily, and
knowingly made, though during the oral canvass the trial court failed to ask defendant if he understood what rights he was waiving,
where the written plea agreement recited the rights defendant was waiving, defendant, when asked by trial court whether he had read
and understood the agreement, answered affirmatively to both questions and indicated he had no questions about the agreement, and
defendant's correspondence to the trial court demonstrated he was an intelligent and competent individual.
9. Criminal Law.
Written plea memorandum, combined with oral canvass conducted by district court, established by totality of the circumstances
that defendant's guilty plea to sexual assault upon minor under age sixteen was freely, voluntarily, and knowingly made, though during
oral canvass the trial court failed to review elements of the crime, where defendant admitted to facts in plea memorandum,
and memorandum and attached exhibit adequately advised defendant of elements of the crime.
ted to facts in plea memorandum, and memorandum and attached exhibit adequately advised defendant of elements of the crime.
OPINION ON EN BANC RECONSIDERATION
1

In 1996, respondent Bryan Scott Freese was charged with nine criminal counts arising from sexual
conduct with a minor. Pursuant to negotiations, Freese entered into a written plea agreement wherein he
agreed to plead guilty to one count of sexual assault upon a minor under sixteen years of age. Freese
entered his guilty plea on May 20, 1997. Freese filed a post-conviction petition for a writ of habeas corpus
in 1998 alleging ineffective assistance of counsel and challenging the sufficiency of the plea canvass.
The district court found, based upon the totality of the circumstances, that Freese's plea was freely,
voluntarily and knowingly entered and that he understood the nature of the offense and the consequences
of his plea. Despite this finding, the district court
2
granted the petition, on the grounds that the plea
canvass did not advise Freese about the elements of the offense or the rights Freese would waive by
pleading guilty and the guilty plea memorandum could not be considered in determining the validity of
the plea.
3
We disagree, and for the reasons set forth below, we reverse the district court's order granting
the post-conviction petition for a writ of habeas corpus.
4

FACTS
In July of 1996, Ethan Williams (Williams) was a neighbor of Freese. Williams' two-story home enabled
him to view areas of the Freese residence. While in the bathroom of his residence, Williams observed Freese
engaging in sexual activities, including what appeared to be sexual intercourse, with a minor female child
who was later determined to be five years old. Williams then contacted the police and reported what he had
observed.
After responding to Williams' report and talking to the child, the police took her to Sunrise
Hospital where a physical examination was conducted by a pediatrician.
__________

1
We issue this opinion in place of the prior panel opinion of March 13, 2000. See State v. Freese, 116
Nev. 337, 997 P.2d 122 (2000).

2
The plea was entered before the Honorable Stephen Huffaker. Due to a general reassignment of
criminal cases, the Honorable Michael L. Douglas heard the petition.

3
The issues relating to ineffective assistance of counsel were never addressed or decided by the district
court.

4
Appellant's pending motion to expedite appeal is denied as moot.
the police took her to Sunrise Hospital where a physical examination was conducted by a pediatrician. The
examination revealed evidence of semen around the child's genital area. Freese was informed of his Miranda
5
rights, waived them, and gave a voluntary statement to the police. Freese admitted to masturbating in the child's
presence and ejaculating on her.
Freese was originally charged by criminal complaint. Pursuant to negotiations, he waived his preliminary
hearing and was bound over to district court for entry of a plea of guilty. Freese determined he did not wish to
proceed with the negotiations and a trial date was set. Subsequently, the district attorney's office received
information that caused it to present additional matters to the Clark County Grand Jury. On October 17, 1996,
the grand jury returned a True Bill against Freese containing four counts of lewdness with a child under the age
of fourteen years and five counts of sexual assault upon a minor under sixteen years of age. Freese was arraigned
on the indictment and the previously filed information was dismissed.
A trial date was set; however, the matter was again negotiated and on May 20, 1997, Freese entered into a
written plea agreement wherein he agreed to plead guilty to one count of sexual assault with a minor under
sixteen years of age. In return for Freese's plea of guilty, the district attorney's office agreed not to proceed on
the remaining counts. Freese then entered his guilty plea pursuant to the negotiations.
Prior to accepting the guilty plea, the district court, in addition to reviewing the guilty plea memorandum,
conducted the following canvass of Freese:
THE COURT: Is your plea of guilty freely and voluntarily made?
FREESE: Yes, it is.
THE COURT: Is Mr. Wolfson your attorney?
FREESE: Yes, he is.
THE COURT: Have you discussed this matter with him?
THE COURT: Has he explained the nature of the offense here charged against you?
FREESE: Yes.
THE COURT: Did he tell you what the elements of that offense are which the state would have to
prove at the time of trial?
THE COURT: Do you feel you understand those matters?
__________

5
FREESE: Yes.
THE COURT: Did he tell you what sentence the court could impose by virtue of your guilty plea?
THE COURT: What is your understanding of what the maximum sentence is?
FREESE: Life with parole up to 20 or a sentence of five to 20 years.
THE COURT: Exactly. Do you understand that the matter of sentencing is strictly up to the court and
no one else can promise you anything?
FREESE: Yes, I do.
* * *
THE COURT: Do you understand that this is a non-probationable offense, that you must serve some
prison time?
FREESE: Yes, I do.
THE COURT: Have you read the guilty plea agreement on file?
THE COURT: Do you understand everything that's in it?
THE COURT: Is it all true to the best of your knowledge?
FREESE: Yes.
THE COURT: Did you sign the agreement, Mr. Freese?
THE COURT: When you read it and signed it, was Mr. Wolfson, your attorney, available to you to
answer any questions that you might have?
FREESE: Yes.
THE COURT: When you read and signed the agreement, Mr. Freese, were you under the influence
of alcohol, drugs, medicine, or illness, anything like that?
FREESE: No, Sir.
THE COURT: In this guilty plea agreement you make a plea negotiation with the state and as part of
that plea negotiation you plead guilty to this offense of sexual assault with a minor under 16 years of age.
Do you think it's in your best interest to do that?
FREESE: Yes, I do.
THE COURT: Does this plea agreement state the entire negotiation you have made with the state?
MR. WOLFSON: May I interject? I think inferentially it does, but to be totally specific, there are
more counts in the original indictment.
This amended indictment supersedes the original indictment, so by pleading guilty to the one count
inferentially, the state will not be proceeding on the other counts.
It doesn't say that here, but by inference that's what we understand the plea bargain to be.
* * *
THE COURT: Is that your understanding, Mr. Freese?
FREESE: Yes, Sir.
THE COURT: Court accepts defendant's plea of guilty under the guilty plea agreement.
The written plea memorandum that Freese acknowledged reading, understanding and signing in the oral
canvass contained a detailed statement of the negotiations, the elements of the offense, possible sentences Freese
could receive and the rights Freese would waive by pleading guilty. With respect to the elements of the crime,
the plea agreement stated that:
I understand that by pleading guilty I admit the facts which support all the elements of the offense(s) to
which I now plead as set forth in Exhibit 1.
6

The plea memorandum also contained the following waiver of rights language:
By entering my plea of guilty, I understand that I am waiving and forever giving up the following
rights and privileges:
1. The constitutional privilege against self-incrimination, including the right to refuse to testify at
trial, in which event the prosecution would not be allowed to comment to the jury about my refusal to
testify.
2. The constitutional right to a speedy and public trial by an impartial jury, free of excessive pretrial
publicity prejudicial to the defense, at which trial I would be entitled to the assistance of an attorney,
either appointed or retained. At trial the State would bear the burden of proving beyond a reasonable
doubt each element of the offense charged.
3. The constitutional right to confront and cross-examine any witnesses who would testify against me.
__________

6
Exhibit 1 was the amended indictment which read as follows:
Defendant BRYAN SCOTT FREESE did then and there willfully, unlawfully, and feloniously sexually
assault and subject . . ., a female child under sixteen years of age, to sexual penetration, to-wit: digital
penetration, by Defendant BRYAN SCOTT FREESE putting his finger into the vagina of the said . . . ,
against her will, or under conditions in which Defendant BRYAN SCOTT FREESE knew or should have
known, that . . . was mentally or physically incapable of resisting or understanding the nature of
Defendant's conduct.
4. The constitutional right to subpoena witnesses to testify on my behalf.
5. The constitutional right to testify in my own defense.
6. The right to appeal the conviction, with the assistance of an attorney, either appointed or retained,
unless the appeal is based upon reasonable constitutional jurisdictional or other grounds that challenge
the legality of the proceedings and except as otherwise provided in subsection 3 of NRS 174.035.
Based upon the written plea memorandum and Freese's responses to the oral canvass, the district court
determined that Freese understood the nature of the offense and the consequences of his plea and that his plea
was freely, voluntarily and knowingly made. The district court then accepted the guilty plea.
On September 3, 1998, Freese filed a timely post-conviction petition for a writ of habeas corpus alleging
ineffective assistance of counsel and challenging the sufficiency of the plea canvass. On October 14, 1998, the
district court granted the petition solely on the ground that the plea canvass conducted by the district court judge
was inadequate. Specifically, the district court found that the judge failed to ask Freese if he understood what
rights he was waiving as a result of a guilty plea and to review the elements of the crime with Freese. The district
court made its findings under the belief that the guilty plea agreement could not be considered in determining the
validity of Freese's plea. The district court stated that:
It's this Court's independent feeling that there shouldn't be a dispute that Mr. Freese did not
understand the nature and consequence of his plea or he did not understand the elements of that plea and
the elements of the charges based upon reviewing of this and the Guilty Plea Agreement that has been
memorialized with the necessary items. However, when the Court sees the Koerschner case,
K-O-E-R-S-C-H-N-E-R vs. State at 111 Nev. 384, our Supreme Court has indicated the existence of a
written plea agreement did not remedy the District Court's failure to personally canvass appellant, and as
I review this document, there has been no showing that Mr. Freese is not competent or he does not
understand English and that he's not educated sufficiently to understand. That is not the issue.
The issue is the failure to go over the elements of the crime and the issue of, as it's placed in the
canvass, the waiver of rights, but his rights. And even though I think it is a travesty to set aside the Guilty
Plea Agreement, that is the law and this Court will follow the law as to that matter because Mr.
Freese was not fully canvassed on the record, and I underline on the record.
because Mr. Freese was not fully canvassed on the record, and I underline on the record.
Thus the district court felt compelled to grant the post-conviction petition for a writ of habeas corpus because it
believed that a previous holding of this court mandated a finding that the plea was invalid when certain questions
are not asked during a plea canvass. The State of Nevada now appeals.
DISCUSSION
The State contends that the district court erred by concluding that the plea canvass conducted by the district
court was insufficient to ensure that the plea was voluntary and that Freese understood the nature of the offense
and the consequences of his plea. The State argues that the plea agreement, combined with the canvass
conducted by the district court, establishes by a totality of the circumstances that Freese's guilty plea was the
result of a voluntary and informed choice. We agree.
The totality of the circumstances test has been the standard for reviewing the validity of guilty pleas for
some years. In Bryant v. State, 102 Nev. 268, 721 P.2d 364 (1986), we urged trial courts to be as complete as
possible in conducting a plea canvass, but stressed that the failure to utter talismanic phrases will not
invalidate a plea where a totality of the circumstances demonstrates that the plea was freely, knowingly and
voluntarily made.
[W]hile we believe trial courts should in all circumstances conduct sufficient and thorough plea
canvasses, as an appellate court reviewing the validity of a plea, we cannot be constrained to look only
to the technical sufficiency of a plea canvass to determine whether a plea has been entered with a true
understanding of the nature of the offense charged. As the United States Supreme Court has recognized,
an appellate court should review the entire record, and look to the totality of the facts and circumstances
of a defendant's case, to determine whether a defendant entered his plea with an actual understanding of
the nature of the charges against him. See Marshall v. Lonberger, 459 U.S. 422 (1983); Henderson v.
Morgan, 426 U.S. 637 (1976).
Id. at 271, 721 P.2d at 367.
Here, although the district court noted that the totality of the circumstances, as evidenced by the record,
supported a finding that Freese entered a valid plea of guilty, the district court based its decision in this case not
on Bryant, but on Koerschner v. State, 111 Nev. 384, 892 P.2d 942 (1995).
In Koerschner this court held that NRS 174.035(1) requires the district court to personally' address
criminal defendants who plead guilty"
plead guilty and that the existence of a written plea agreement [does] not remedy the district court's failure to
personally canvass. Id. at 386-87, 892 P.2d at 944. Koerschner involved a case in which almost no dialogue
occurred between the defendant and the district judge. Thus, even with the written plea agreement, this court
could not conclude that the district court's interaction with the defendant was sufficient for the district court to be
able to determine the competency of the defendant and the voluntariness of the plea.
Furthermore, the version of NRS 174.035 at issue in Koerschner required the district court to conduct a plea
canvass: The court . . . shall not accept [a plea of guilty] . . . without first addressing the defendant personally
and determining that the plea is made voluntarily with understanding of the nature of the charge and
consequences of the plea. See 1991 Nev. Stat., ch. 405, 1, at 1062. However, NRS 174.035 was amended
prior to Freese's plea of guilty. See 1995 Nev. Stat., ch. 480, 2, at 1534. NRS 174.035 no longer requires the
courts to personally address a defendant regarding the elements of a plea agreement unless the agreement is
made orally. See NRS 174.035(2). Accordingly, to the extent that the holding in Koerschner is based upon NRS
174.035, it is not controlling.
[Headnotes 1-3]
Nevertheless, the requirement that a court personally address a defendant before accepting a plea of guilty is
not simply a creature of statute. We agree with the dissent that the acceptance of a plea of guilty is a solemn duty
and that a colloquy between a judge and a defendant is necessary before a judge can accept a plea of guilty. A
colloquy is a constitutional mandate to ensure that a court has sufficient information to conclude that a defendant
understands the consequences of a plea as well as the nature of the offenses. Only then can a court determine that
the defendant has freely, voluntarily and knowingly decided to plead guilty. Thus, Koerschner is still good law
to the extent that it prohibits a court from relying solely on a written plea agreement when accepting a plea of
guilty.
[Headnotes 4, 5]
However, any language in Koerschner that may be read to require a ritualistic oral canvass of a defendant
and that the failure to conduct such a canvass mandates a finding of an invalid plea, is expressly overruled. This
court will not invalidate a plea as long as the totality of the circumstances, as shown by the record, demonstrates
that the plea was knowingly and voluntarily made and that the defendant understood the nature of the offense
and the consequences of the plea. See Hurd v. State, 114 Nev. 1S2, 953 P.2d 270 {199S);
182, 953 P.2d 270 (1998); Kidder v. State, 113 Nev. 341, 344, 934 P.2d 254, 256 (1997).
7

The dissent infers that the changes to NRS 174.035(2) were enacted to speed up the process of accepting a
plea of guilty. While the use of a plea memorandum may have such an effect, the fact that the legislature
mandated the use of a written memorandum in all cases where the maximum prison sentence exceeds ten years
or where probation is not allowed, indicates that the legislature believed that plea memoranda are desirable
devices for informing a defendant of his or her rights. The legislature could also have concluded that a written
document, signed by the defendant, was an additional method of addressing collateral attacks upon a plea.
Defendants can always allege that they did not understand or did not know about some aspect of their pleas.
A canvass, together with a written plea memorandum, makes a clear and concise record for expeditiously
disposing of such allegations. Moreover, whether all of the information to be given to defendants is contained in
an oral canvass, a plea memorandum or both, defendants can, and do, assert that they did not know what they
were doing and that they simply answered a judge's questions or signed a plea memorandum at the direction of
their attorney. A more extensive oral canvass will not, as suggested by the dissent, eliminate or deter this
practice.
[Headnotes 6, 7]
A defendant's comprehension of the consequences of a plea, the voluntariness of a plea and the general
validity of a plea are to be determined by reviewing the entire record and looking to the totality of the facts and
circumstances surrounding the plea. A court must be able to conclude from the oral canvass, any written plea
memorandum and the circumstances surrounding the execution of the memorandum (i.e., did the defendant read
it, have any questions about it, etc.) that the defendant's plea was freely, voluntarily and knowingly made. No
specific formula for making this determination is required. Each case must be decided upon the facts and
circumstances of that case. See Taylor v. Warden, 96 Nev. 272, 607 P.2d 587 (1980). The record in this case
demonstrates that Freese's guilty plea was freely, voluntarily and knowingly made, therefore the district court
erred in granting the petition.
Waiver of rights
[Headnote 8]
Freese signed a plea agreement indicating that he waived the right to:
__________

7
Any language in Kidder which may be read to require specific inquiries during a plea canvass for a plea to
be valid is also disapproved.
right to: (1) not incriminate himself; (2) a speedy and public trial by an impartial jury; (3) confront and
cross-examine witnesses; (4) subpoena witnesses to testify on his behalf; (5) testify in his own defense; and (6)
appeal the conviction, except under certain limited circumstances.
When he entered the plea, Freese was questioned about whether he had read and understood the agreement
and he answered affirmatively to both questions. Freese indicated he did not have any questions about the
agreement. Moreover, Freese's correspondence to the district court supports the finding that Freese is an
intelligent, competent individual who understood the written memorandum. Freese does not assert that he was
incapable of reading or understanding the agreement, only that the district court never asked him specific
questions.
8
We conclude, under the totality of the facts and circumstances of this case, including the plea
agreement's description of the rights to be waived by Freese, Freese's statements that he read, understood and
signed the agreement and his other responses to the district court's questions, that Freese was aware of the rights
he was waiving.
The elements of the crime
[Headnote 9]
During the plea canvass, the district court questioned Freese regarding whether his attorney had explained
the elements of the offense to him and whether he understood those elements. Freese answered yes to both
questions. In addition, the plea agreement contained a statement by Freese that he admitted to the facts
constituting the offense and that he understood the elements of the offense as set forth in the charging
document. We conclude that the district court's plea canvass was not inadequate for failure to review the
elements of the crime because Freese admitted to the facts in the plea memorandum, and the memorandum and
attached exhibit adequately advised him of the elements of the charges. See Hurd v. State, 114 Nev. 182, 953
P.2d 270 (1998).
CONCLUSION
After reviewing the record and considering the totality of the facts and circumstances surrounding the plea
at issue, we conclude that the canvass conducted by the district court, together with the signed plea agreement,
reveal that Freese understood the nature of the offense and the consequences of his plea.
__________

8
In fact, at the time of the oral arguments before the district court, the State indicated that Freese was a
county employee and an honorably discharged member of the armed forces at the time he entered his plea.
Freese did not contest the accuracy of this information.
nature of the offense and the consequences of his plea. Freese freely, voluntarily and knowingly entered his plea
of guilty. We therefore reverse the district court's order granting Freese's petition for a writ of habeas corpus.
Because the district court did not enter any findings with respect to Freese's claims of ineffective assistance of
counsel, we remand this matter to the district court for further proceedings on those issues.
Young, Maupin and Shearing, JJ., concur.
Agosti, J., with whom Rose, C. J., and Leavitt, J., agree, dissenting:
I dissent.
I believe that accepting a guilty plea from a defendant charged with a felony is one of the most solemn and
important duties of a trial judge. For it is at this moment that a defendant relinquishes important constitutional
rights, relieves the state of the expensive and time consuming burden of trial, submits himself to the
jurisdictional and moral authority of the court and renders himself answerable, through sentencing, for a serious
crime. The majority would abandon the requirement that the district judge engage in any substantive and
meaningful canvass of the defendant before accepting a guilty plea.
A defendant's guilty plea must be voluntary, knowing and intelligent to satisfy constitutional due process.
1
The canvass conducted in this case was wholly deficient to make the constitutionally required determination that
the defendant's guilty plea was truly voluntary, knowing and intelligent.
The colloquy in this case consisted of questions posed to a defendant concerning what his attorney and he
had discussed and the circumstances under which he signed a form. This colloquy was simply inadequate to
properly determine if the defendant was competent to plead guilty and if his plea was voluntary, knowing and
intelligent. This defendant was never told by the court and asked if he understood, for example, that he does not
have to plead guilty; that he has a right to a speedy trial before a jury of twelve; that he is presumed innocent of
the offense; that the State has the burden to prove every element of the offense beyond a reasonable doubt; and
that the defendant has the right not to testify at trial and have no inference drawn from the fact that he has not
testified. Here the district judge informed the defendant of none of these constitutional rights.
__________

1
The United States Supreme Court has used slightly different language when describing the voluntary,
knowing and intelligent requirement. See Parke v. Raley, 506 U.S. 20, 28-29 (1992) (describing the standard as
both knowing and voluntary and voluntary and intelligent); Boykin v. Alabama, 395 U.S. 238, 242 (1969)
(intelligent and voluntary); McCarthy v. United States, 394 U.S. 459, 466 (1969) (voluntary and knowing).
of these constitutional rights. The judge merely asked the defendant, pertinent to his trial rights, if he discussed
his case with his lawyer; if his lawyer explained the nature of the offense; if his lawyer told him the elements of
the offense; if the defendant read the guilty plea agreement; if he understood it; if the agreement was true; if he
signed it; if, when he read and signed it, his attorney was available to answer questions concerning it; if, when he
signed it, he was under the influence of anything. The defendant was never asked if he understood his trial rights
or if his attorney had explained them to him or whether he had questions concerning his trial rights. The
defendant was never asked if he was under the influence of any drugs or alcohol as he stood there in open court
entering his guilty plea.
2
The defendant was never asked if he could read and write well enough to understand
the plea agreement. The defendant was never asked if he had adequate time to consult with his attorney or if he
was satisfied with his attorney.
I do not believe that the legislature can strip away a district judge's solemn duty to personally canvass a
defendant prior to accepting a guilty plea. As the United States Supreme Court stated, [w]hat is at stake for an
accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing
the matter with the accused to make sure he has a full understanding of what the plea connotes and of its
consequence. Boykin v. Alabama, 395 U.S. 238, 243-44 (1969).
Pursuant to Rule 11 of the Federal Rules of Criminal Procedure, federal judges are required to personally
address the defendant before accepting his or her guilty plea. FRCP 11 mandates that federal judges make
certain that defendants entering guilty pleas understand that they are waiving specific constitutional rights,
including the right to plead not guilty, the right to a jury trial, the right to confront and cross-examine
government witnesses, and the right not to be compelled to incriminate oneself. FRCP 11 also requires federal
judges to inform defendants entering guilty pleas about the nature of the charge and the mandatory minimum
possible penalty and the maximum possible penalty for the offense, including the effect of any special parole
term.
[A]lthough the procedure embodied in Rule 11 has not been held to be constitutionally mandated, it is
designed to assist the district judge in making the constitutionally required determination that a defendant's
guilty plea is truly voluntary. McCarthy v. United States, 394 U.S. 459, 465 (1969) (footnote omitted). I
believe that in order to make the constitutionally required determination that a defendant's guilty plea is
voluntary, knowing and intelligent, this court should require the district judges of Nevada to
personally canvass defendants concerning their competence to enter a plea, concerning
the constitutional rights they have and are waiving, concerning the elements of the
offense to which they are pleading guilty and concerning the possible penalties at
sentencing.
__________

2
Certainly the majority does not intend to relieve the district judges of their responsibility to determine that a
defendant, as he or she stands before the court, is competent to enter a guilty plea.
intelligent, this court should require the district judges of Nevada to personally canvass defendants concerning
their competence to enter a plea, concerning the constitutional rights they have and are waiving, concerning the
elements of the offense to which they are pleading guilty and concerning the possible penalties at sentencing. I
believe that reliance on a written guilty plea memorandum is inadequate for this purpose.
I appreciate that the majority's view may be popular with many of the district judges of Nevada who are
charged with the responsibility of moving along hefty criminal caseloads. I also appreciate that it takes more
time to conduct a proper and thorough canvass. But the fundamental and critically important judicial duty to
ascertain that a defendant's plea is voluntary, knowing and intelligent can not be performed by resorting to the
kind of canvass approved by the majority. With this kind of canvass, the judge's solemn responsibility is
discharged by performance of an interview with the defendant concerning his interactions with his attorney. I
consider this an abdication of judicial responsibility.
If the goal here is to help the trial courts conserve judicial resources by diminishing the time a district judge
spends with a defendant accused of a felony, then the legislature and the majority are being penny-wise and
pound-foolish. One purpose of a personal plea canvass is to forestall the spin-off of collateral proceedings that
seek to probe murky memories. Boykin, 395 U.S. at 244. To achieve this purpose,
the trial court is best advised to conduct an on the record examination of the defendant which should
include, inter alia, an attempt to satisfy itself that the defendant understands the nature of the charges, his
right to a jury trial, the acts sufficient to constitute the offenses for which he is charged and the
permissible range of sentences.
Id. at 244 n.7 (quoting Commonwealth ex rel. West v. Rundle, 237 A.2d 196, 197-98 (Pa. 1968)).
Requiring district judges to conduct a personal plea canvass following the federal standard of FRCP 11
would tend to discourage, or at least to enable more expeditious disposition of, the numerous and often
frivolous post-conviction attacks on the constitutional validity of guilty pleas. McCarthy, 394 U.S. at 465.
I foresee that regular reliance on a written plea agreement in lieu of a personal canvass by a judge will
eventually result in many more post-conviction attacks by defendants who will claim that they signed the
agreement without fully reading, understanding and appreciating its meaning. And sadly, many of these claims
will have merit. The courts exist to do justice, not simply to move large numbers of bodies through the system. It
is therefore unacceptable to sanction a procedure which does not attempt in any meaningful
way to truly determine that a defendant knows what he or she is doing when entering a
guilty plea.
ceptable to sanction a procedure which does not attempt in any meaningful way to truly determine that a
defendant knows what he or she is doing when entering a guilty plea.
____________
116 Nev. 1111, 1111 (2000) Koerschner v. State
ALLEN KOERSCHNER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 30881
ALLEN KOERSCHNER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 30976
December 4, 2000 13 P.3d 451
Appeal from a judgment of conviction entered pursuant to jury verdicts finding appellant guilty of two counts
of sexual assault upon the person of a minor. Eighth Judicial District Court, Clark County; Lee A. Gates, Judge.
Defendant was convicted in the district court of two counts of sexual assault upon the person of a minor.
Defendant appealed. The supreme court, Maupin, J., held that: (1) defendant failed to prove a compelling need
for independent psychological examination of child-victim, overruling Keeney v. State, 109 Nev. 220, 850 P.2d
311 (1993); abrogating (Marvelle v. State, 114 Nev. 921, 966 P.2d 151 (1998)), Griego v. State, 111 Nev. 444,
893 P.2d 995 (1995); (2) trial court acted within its discretion in allowing the child-victim to testify; (3)
allegations that defendant committed separate acts of sexual assault upon a minor during particular years was
sufficient to put defendant on notice of charges; and (4) trial court properly excluded the testimony regarding the
child-victim's alleged prior acts of dishonesty.
Affirmed.
[Rehearing denied May 7, 2001]
Chief Deputy District Attorney, and Douglas W. Herndon, Deputy District Attorney, Clark County, for
Respondent.
1. Criminal Law.
Trial judge should order an independent psychological or psychiatric examination of child-victim in sexual assault case if the
defendant meets burden of presenting a compelling reason for such an examination, overruling Keeney v. State, 109 Nev. 220,
S50 P.2d 311 {1993);
ruling Keeney v. State, 109 Nev. 220, 850 P.2d 311 (1993); abrogating Marvelle v. State, 114 Nev. 921, 966 P.2d 151 (1998), Griego
v. State, 111 Nev. 444, 893 P.2d 995 (1995).
2. Criminal Law.
In determining whether to order independent psychological or psychiatric examination of child-victim in sexual assault case, judge
has discretion to weigh compelling reasons that involve whether the State actually calls or obtains some benefit from an expert in
psychology or psychiatry, whether the evidence of the offense is supported by little or no corroboration beyond the testimony of the
victim, and whether there is a reasonable basis for believing that the victim's mental or emotional state may have affected his or her
veracity.
3. Criminal Law.
Defendant failed to prove a compelling need for independent psychological examination of child-victim in sexual assault
prosecution, where State presented evidence that amply corroborated victim's testimony, the State elicited no psychological evidence
during its presentation to the jury, there was no indication that the State had some advantage over the defense by having access to
psychological evidence, and there was no indication in the record that victim's veracity was affected to any particular degree by her
mental or emotional state.
4. Witnesses.
A child witness is competent to testify if the child has the capacity to receive just impressions and possesses the ability to relate to
them truthfully.
5. Criminal Law.
Appellate court will not disturb a finding of competency to testify absent a clear abuse of discretion.
6. Witnesses.
Trial court acted within its discretion in allowing the child-victim to testify in sexual assault prosecution, where child-victim was
fourteen years old at time of trial, victim clearly had the ability to receive and communicate information, she had a memory of the
events upon which the proceedings were based, and she understood the need to testify truthfully.
7. Criminal Law.
Statements made by child-victim of sexual assault nurse that were pertinent to ongoing care for the victim were admissible under
medical diagnosis or treatment exception to hearsay rule, even though the statements were made after the victim's initial treatment was
completed. NRS 51.115.
Allegations that defendant committed separate acts of sexual assault upon a minor during particular years was sufficient to put
defendant on notice of charges. Given nature of offenses, State was not required to allege specific dates upon which the alleged sexual
assaults were committed.
9. Infants.
Trial court properly excluded the testimony regarding the child-victim's alleged prior acts of dishonesty, including thefts from the
family, in prosecution for sexual assault upon a minor. Evidence of guilt was overwhelming and record did not support defendant's
contention that the victim's past acts provided a motive to lie about the sexual assault. NRS 48.045(2), 50.085(2).
10. Criminal Law.
Absent an abuse of discretion, a district court's decision whether to admit evidence will not be set aside.
11. Infants.
Trial court properly excluded any evidence of prior alleged sexual contacts between child-victim and third persons in prosecution
for sexual assault upon minor based on vaginal penetration, where alleged prior sexual abuse involved the alleged rubbing of the victim
on her posterior, not vaginal penetration, and claim of past sexual abuse did not provide an alternate cause of the specific injuries
sustained by victim.
OPINION
A jury found appellant Allen Koerschner guilty of two counts of sexual assault upon the person of a
minor. Koerschner seeks reversal of the judgment of conviction entered upon the jury verdicts because
the district court erroneously denied Koerschner's request for an independent psychological examination
of the child-victim, found the child-victim competent to testify, admitted evidence of prior consistent
statements of the child made to medical providers in connection with one of the alleged assaults, allowed
the case to proceed to trial on charges that were not sufficiently pleaded, refused to admit evidence of
instances of dishonesty of the child-victim on the issue of motive, and refused to admit evidence of prior
sexual abuse of the child-victim by a third party.
FACTS
Allen Koerschner and his spouse took custody of their nine-year-old niece following the death of her
mother. On May 2, 1992, the niece was admitted to a Las Vegas hospital with severe bleeding from the area
of her cervix. She initially advised hospital personnel that the bleeding was caused by a fall down a flight of
stairs.
Gema Reynolds, a nurse trained in sexual assault cases, was the first person to examine the child. No
bruises, scratches, abrasions, or lacerations were identified. Concluding that the injury was not consistent
with a fall, Nurse Reynolds undertook further questioning. The child then described a sexual assault, which
she claimed was perpetrated by Koerschner.
Subsequent examination by Dr. Donald Roberts revealed the absence of a hymenal ring and a four
centimeter laceration of the victim's vaginal wall. Dr. Roberts noted that the lack of a hymenal ring and the
necessity of using an adult-sized speculum to conduct the examination were unusual for a
nine-year-old female.
the examination were unusual for a nine-year-old female. He then concluded that the injury was not caused by a
fall.
On March 18, 1996, the State filed a second amended information charging Koerschner with three counts of
sexual assault upon the person of a minor under the age of fourteen years.
1
The three counts referred to separate
incidents that took place during 1990, 1991 and 1992. Specific dates for the 1990 and 1991 incidents were not
alleged.
At trial, the child described acts of sexual intercourse commencing in September of 1990, shortly after she
moved into the Koerschner home, and further acts that occurred over time during 1991 and 1992. She testified
that on May 2, 1992, Koerschner told her to enter his bedroom, remove her clothes and lie down on the bed. She
then described a painful act of intercourse that resulted in severe bleeding. Ultimately, when the bleeding
continued, Koerschner sought medical treatment for her. According to the child, while en route to the hospital,
Koerschner told her to tell the hospital staff that she had fallen down the stairs.
A jury ultimately found Koerschner guilty of two counts of sexual assault upon the person of a minor under
the age of fourteen years. The district court sentenced Koerschner to consecutive terms of life in the Nevada
State Prison with the possibility of parole after service of ten years on each count. Koerschner appeals.
DISCUSSION
Independent psychological examination of the victim
Koerschner contends the district court erred in denying his application for a psychological examination of
the victim. This issue requires us to revisit and reconcile our prior authority on this subject. See Marvelle v.
State, 114 Nev. 921, 966 P.2d 151 (1998); Griego v. State, 111 Nev. 444, 893 P.2d 995 (1995); Keeney v. State,
109 Nev. 220, 850 P.2d 311 (1993); Lickey v. State, 108 Nev. 191, 827 P.2d 824 (1992); Washington v. State,
96 Nev. 305, 608 P.2d 1101 (1980).
In Marvelle, Griego, Keeney, Lickey and Washington, this court considered the extent of discretion
held by district courts of this state to grant or deny independent psychological or
psychiatric evaluations of child-victims in sexual assault cases, where independent
corroboration of the alleged offense is either marginal or is lacking altogether.
__________

1
Koerschner originally pleaded guilty to one count of sexual assault upon the person of a minor under the age
of fourteen years. Two separate counts were dismissed as part of plea negotiations, and he received a single
sentence of life in the Nevada State Prison, which stipulated that he would be eligible for parole after five years.
Thereafter, alleging that the guilty plea canvass was faulty, Koerschner sought relief via a petition for a writ of
habeas corpus, which was denied by the district court. On appeal, this court reversed and remanded the matter to
the district court for further proceedings. See Koerschner v. State, 111 Nev. 384, 892 P.2d 942 (1995).
Thereafter, the second amended information was filed in the district court and trial proceedings commenced.
considered the extent of discretion held by district courts of this state to grant or deny independent psychological
or psychiatric evaluations of child-victims in sexual assault cases, where independent corroboration of the
alleged offense is either marginal or is lacking altogether.
In Washington, we stated that trial courts should order a psychiatric examination of a child-victim if the
defendant presents a compelling reason for such an examination. Under Washington, no compelling reason
exists unless there is little or no corroboration of the victim's allegations and the defense has questioned the
effect of the victim's emotional or mental condition upon her veracity. Washington, 96 Nev. at 307, 608 P.2d at
1102.
2

This court held in Lickey that, unless competent evidence presents a compelling reason to protect the victim,
a defendant in a child sexual assault case is entitled to have the victim undergo an independent examination
when the State is provided such assistance. In Lickey, the prosecution's evidence consisted almost entirely of the
child-victim's testimony, and the victim had been interviewed numerous times by the State's experts. Lickey, 108
Nev. at 194, 827 P.2d at 826.
In Keeney, we reaffirmed the proposition that a decision to grant a psychological examination of a victim is
within the sound discretion of the district court and will not be set aside absent an abuse of discretion. Keeney,
109 Nev. at 227, 850 P.2d at 316. Under Keeney, whether an abuse of that discretion has occurred is tested in
connection with four factors:
[I]t would be error to preclude a defendant from having an alleged child-victim examined by an expert in
psychiatry or psychology if: (1) the State has employed such an expert; (2) the victim is not shown by
compelling reasons to be in need of protection; (3) evidence of the crime has little or no corroboration
beyond the testimony of the victim; and (4) there is a reasonable basis for believing that the victim's
mental or emotional state may have affected his or her veracity.
Id. at 226, 850 P.2d at 315. The articulation of the second factor in Keeney arguably shifted the burden in these
matters from the defendant to the State. Certainly, in Washington, this court stated the test in terms of whether
the defendant has presented a compelling need for such an examination. Under Keeney, the second factor seems
to place the onus on the State to show a compelling need for protection of the victim if the other factors are
present.
In Griego, we held that, absent an affirmative, compelling showing by the State that the alleged
victim is in need of protection, the second Keeney factor favors examination of the
alleged victim by a mental health expert employed by the defendant."
__________

2
In Washington, the prosecution did not seek to introduce expert testimony on the question of the mental
state of the alleged victim. We affirmed the district court's refusal to allow an independent examination of the
victim.
showing by the State that the alleged victim is in need of protection, the second Keeney factor favors
examination of the alleged victim by a mental health expert employed by the defendant. Griego v. State, 111
Nev. 444, 450, 893 P.2d 995, 999 (1995). This statement underscores the argument that Keeney shifted the
burden from the defendant to the State in such cases.
In Marvelle, the State, although representing that it was not going to call any psychological experts, elicited
some evidence from witnesses, mainly counselors who were not qualified to testify as experts, regarding the
consistency of the child-victim's behavior. The majority in Marvelle concluded that the psychological status of
the victim was at issue and that there was very little reason to afford protection from such an examination. The
majority also, at least arguably, implied that district courts must give equal weight to all four Keeney factors
when it held that two of the factors were erroneously appliedwhether an expert would be called to testify by
the State and whether the victim's mental or emotional state may have affected her veracity. Marvelle v. State,
114 Nev. 921, 928, 966 P.2d 151, 155 (1998). The dissent in Marvelle criticized the majority, indicating that
district courts must weigh the factors based upon the facts and circumstances surrounding each case. The dissent
went on to observe that, while all of the Keeney factors should be considered, the district courts should have the
discretion of giving more weight to any one of them. Id. at 114 Nev. 933, 966 P.2d 158 (Shearing, J.,
dissenting).
[Headnotes 1, 2]
The primary source of ambiguity in our decisions in these cases centers on the second Keeney factor, i.e.,
whether the victim is not shown by compelling reasons to be in need of protection. See Griego, 111 Nev. at 450,
893 P.2d at 999. We now conclude that, to the extent Keeney shifted the burden in these matters from the
defendant to the State, it should be overturned. In this, we return to the statement in Washington that [t]he trial
judge should order an examination if the defendant presents a compelling reason for such an examination.
Washington v. State, 96 Nev. 305, 307, 608 P.2d 1101, 1102 (1980). We now also hold that whether a
compelling need exists for such an intrusion is not a factor to be considered along with the other three factors.
Rather, it is the overriding judicial question which must be resolved based upon the other three factors.
3
Thus,
compelling reasons to be weighed, not necessarily to be given equal weight,
__________

3
Keeney words the second factor, in terms of whether the victim is not shown by compelling reasons to be in
need of protection. Keeney v. State, 109 Nev. 220, 226, 850 P.2d 311, 315 (1993). This assumes that an
examination should be ordered unless the State met a burden of proving that the
not necessarily to be given equal weight, involve whether the State actually calls or obtains some benefit from an
expert in psychology or psychiatry, whether the evidence of the offense is supported by little or no corroboration
beyond the testimony of the victim, and whether there is a reasonable basis for believing that the victim's mental
or emotional state may have affected his or her veracity.
4

[Headnote 3]
Applying these considerations to the facts of this case, we conclude that Koerschner failed to prove a
compelling need for the examination he seeks. Most importantly, the State presented ample corroboration of the
victim's testimony to support the charges against Koerschner, namely, a four centimeter internal laceration and
the need to use an adult procedure to examine the victim. Additionally, Dr. Roberts and Nurse Reynolds both
testified that this type of injury was indicative of a sexual assault and atypical of a fall down a flight of stairs.
Next, the State elicited no psychological evidence during its presentation to the jury, nor is there any indication
that the State had some advantage over the defense by having access to psychological evidence. See Lickey v.
State, 108 Nev. 191, 193, 827 P.2d 824, 825 (1992) (involving a prosecution where the State called an expert to
testify that the victim had experienced Post Traumatic Stress DisorderSecondary to Child Sexual Abuse).
Finally, while the child-victim in this case had experienced a very tragic and stressful childhood, there was no
indication in the record that her veracity was affected to any particular degree by her mental or emotional state.
Competency of the child-victim
Koerschner contends that the child-victim was not competent to testify because her testimony was the
product of coaching and rehearsal of her testimony. We conclude that this contention lacks merit.
__________
victim is in need of protection. As noted, this changed the statement of the rule as articulated in Washington.
We have therefore reworded this consideration so that the burden is on the defendant to prove, based upon the
other three former Keeney factors, that compelling circumstances exist to justify the intrusion.

4
Keeney does not hold that an independent examination may never be ordered unless the State calls or
obtains benefit from an expert. Rather, it holds that error is committed when a defendant in a child-victim case is
refused such an examination if the State has the benefit of an expert analysis and the other three factors are
satisfied. There may be situations where the veracity of a child witness may be brought into question because of
his or her emotional or mental state, even though the State has had no access to or benefit from an expert.
[Headnotes 4-6]
A child witness is competent to testify if the child has the capacity to receive just impressions and possesses
the ability to relate to them truthfully. See Felix v. State, 109 Nev. 151, 173, 849 P.2d 220, 235 (1993). This
court will not disturb a finding of competency [to testify] absent a clear abuse of discretion. Lanoue v. State,
99 Nev. 305, 307, 661 P.2d 874, 874 (1983). The child-victim in this case was fourteen years of age at the time
of trial, she clearly had the ability to receive and communicate information, had a memory of the events upon
which the proceedings were based, and understood the need to testify truthfully. Accordingly, we conclude that
the district court acted within its discretion in allowing the victim to testify.
Hearsay statements to medical personnel
[Headnote 7]
Koerschner next contends that the district court erred in admitting prior consistent statements made by the
victim to Nurse Reynolds because the statements were hearsay. The statements were made during the first
evening of a three-day hospital stay.
Statements made for purposes of medical diagnosis or treatment and describing medical history, or
past or present symptoms, pain or sensations, or the inception or general character of the cause or
external source thereof are not inadmissible under the hearsay rule insofar as they were reasonably
pertinent to diagnosis or treatment.
We conclude that the statements made by the victim to Nurse Reynolds were made during the course of her
medical treatment, in accordance with NRS 51.115. While the statements were made after the initial treatment
was completed, the statements were pertinent to ongoing care for the victim.
5

Notice of the charges
[Headnote 8]
Koerschner also contends that the district court erred by failing to dismiss two of the counts against him
because the State failed to allege specific dates upon which two of the alleged sexual assaults were
committed.
__________

5
The State argues that the prior consistent statements to Nurse Reynolds were admissible as non-hearsay
under NRS 51.035(2)(b). In light of our ruling that the statements were admissible under NRS 51.115, we need
not reach this issue. Additionally, it was not necessary for the district court to conduct a separate
trustworthiness hearing under Lytle v. State, 107 Nev. 589, 590, 816 P.2d 1082, 1083 (1991), the statements
of this victim having been admissible under a well recognized hearsay exception.
assaults were committed. Here, the second amended information upon which Koerschner was tried alleged in
three separate counts that he committed separate acts of sexual assault during the years 1990, 1991 and 1992. He
was convicted on the counts relating to the events alleged to have taken place in 1991 and 1992. The later event,
as confirmed by the medical evidence in the case, was alleged to have occurred on a specific date. The 1991
events were generally alleged to have occurred sometime during that year.
In Cunningham v. State, 100 Nev. 396, 401, 683 P.2d 500, 502 (1984), this court held that allegations of
time frames rather than specific offense dates were sufficient to place the defense on notice of the charges.
Otherwise, convictions for criminal misfeasance would only be valid when the State correctly guesses the date of
an offense. We conclude that, given the nature of these charges and the time frames set forth in the second
amended information, our previous ruling in Cunningham controls. Thus, no error was committed with regard to
this issue.
Prior bad acts of the child-victim
[Headnote 9]
Koerschner sought admission of specific instances of conduct demonstrating that the child-victim was
dishonest. He argues on appeal that the specific acts of dishonesty, i.e., thefts from the family, evidenced the
child-victim's motive to fabricate the claims of sexual assault. Additionally, Koerschner argues that this
testimony was relevant to demonstrate the victim's propensity for untruthfulness in general.
NRS 48.045(2) provides that [e]vidence of other crimes, wrongs or acts is not admissible to prove the
character of a person . . . . It may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Additionally,
NRS 50.085(2) states that [e]vidence of the reputation of a witness for truthfulness or untruthfulness is
inadmissible.
We conclude that the district court properly excluded the testimony regarding the victim's alleged prior acts
of dishonesty. The record clearly fails to support Koerschner's contention that the victim's past acts provided a
motive to lie about the sexual assault. Thus, Koerschner failed to meet the standard set forth in NRS 48.045(2).
Also, given the overwhelming evidence supporting Koerschner's guilt, particularly the evidence of the nature of
the child's injuries, and given the extraneous nature of the prior bad act evidence, there was no abuse of
discretion in the exclusion of this proposed testimony. See Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503,
508 (1985).
Evidence of prior abuse
Koerschner further contends that the district court erred by excluding evidence concerning a previous
molestation of the child-victim by an individual other than Koerschner. He claims that the other fact pattern
was similar to that presented in this case.
[Headnotes 10, 11]
Absent an abuse of discretion, a district court's decision whether to admit evidence will not be set aside. See
id. at 52, 692 P.2d at 508. Here, the alleged prior sexual abuse involved the alleged rubbing of the victim on her
posterior, not vaginal penetration. This claim of past sexual abuse does not provide an alternate cause of the
specific injuries sustained by this victim. Thus, we conclude the district court properly excluded any evidence of
the prior alleged sexual contacts between this victim and third persons.
Having reviewed all other contentions raised in this appeal and finding them to be without merit, we hereby
affirm the judgment below.
6

Young and Leavitt, JJ., concur.
I concur in affirming Koerschner's convictions because under the existing case law his claims of error are
without merit. The State did not present expert psychological evidence, there was substantial corroboration of
the child-victim's testimony, and no credible challenge to the child-victim's veracity was made. I write separately
because I disagree with the majority's decision to overrule the precedents of the last decade that attempted to
level the playing field when the State prosecutes a child sexual assault case with the aid of a psychological
expert's testimony.
While most allegations of sexual assault are proven true, false allegations are occasionally made against a
party wrongly accused. These false allegations are extremely difficult to defend against and disprove, especially
when the victim is a child. As a result, this Court has made every attempt to make the jury trial process fair to the
accused, the State, and the victim. Because psychological evidence is often the critical factor in these cases, we
have held that a person accused of child sexual assault should, in certain circumstances, have the assistance of a
psychologist or psychiatrist if the State has such assistance.
__________

6
I would note my agreement with the points made by Shearing, J., in her separate concurrence.
The Honorable Nancy A. Becker, Justice, voluntarily recused herself from participation in the decision of this
appeal.
A psychological expert is permitted to testify to how the alleged child victim described the crime, whether
the child victim shows signs of being coached in testimony, whether the victim suffers post-traumatic stress,
whether the observed condition of the child is consistent with an assault, and whether the victim has been
forthcoming rather than evasive. See generally Lickey v. State, 108 Nev. 191, 827 P.2d 824 (1992); Marvelle v.
State, 114 Nev. 921, 966 P.2d 151 (1998). This testimony is usually a ringing endorsement of the child victim's
testimony and an affirmation that the sexual assault took place. Without the assistance of a psychological expert,
the accused is usually at a loss to contest the State's expert evidence, even if it is untrue or grossly exaggerated.
For this reason, this Court in Lickey determined that when the State uses a psychologist or psychiatrist, the
district court should give the accused access to such an expert of his or her own unless compelling reasons are
shown to protect the child victim. See Lickey, 108 Nev. at 195, 827 P.2d at 826. This Court went on in Keeney
v. State, 109 Nev. 220, 850 P.2d 311 (1993) to articulate the four factors the district court should consider in
determining whether an accused should be given the assistance of a psychological expert. Thus, a defendant
facing accusations of child sexual assault should have the assistance of an expert in psychology or psychiatry if:
(1) the State has employed such an expert; (2) the victim is not shown by compelling reasons to be in need of
protection; (3) evidence of the crime has little or no corroboration beyond the testimony of the victim; and (4)
there is a reasonable basis for believing that the victim's mental or emotional state may have affected his or her
veracity. See id. at 226, 850 P.2d at 315.
In Griego v. State, 111 Nev. 444, 893 P.2d 995 (1995), we had the opportunity to review a district court's
application of these factors and determined that the court erred by denying the accused the assistance of an
expert psychologist. Our analysis in Griego demonstrated two things. First, in balancing the Keeney factors, a
district court cannot reach its determination without considering the totality of the factors and may not rely on
any single factor. Second, we specifically stated that absent an affirmative, compelling showing by the State
that the alleged victim is in need of protection, the second factor favors examination of the alleged victim by a
mental health expert employed by the defendant. Id. at 450, 893 P.2d at 999. Contrary to the majority's
reasoning, this language is not ambiguous. It specifically states that it is the State's burden to show compelling
reasons why the child victim is in need of protection. Furthermore, placing this burden upon the State is
appropriate. The State has access to the child victim and most of the evidence in the case, and thus is in a better
position to assess whether the child victim is in need of protection.
ter position to assess whether the child victim is in need of protection.
In Marvelle v. State, 114 Nev. 921, 966 P.2d 151 (1998), we again held that the defendant in a child sexual
assault case was improperly denied the assistance of a psychological expert and clearly indicated that each of the
four factors should be considered by the district court and that a decision should be reached by weighing and
balancing them collectively. Nowhere in Marvelle did we revoke or alter the State's burden of showing that an
alleged child victim is in need of protection.
With the above authority in mind, I am baffled how the majority comes to the conclusion that there is some
ambiguity in our prior cases on the issue of who has the burden to show that a child victim is in need of
protection. In Griego we clearly and unambiguously placed the burden upon the State.
Having found this ambiguity, the majority now places the burden on the accused by reaching back to a case
decided two decades ago, Washington v. State, 96 Nev. 305, 608 P.2d 1101 (1980). My objection here is
two-fold. First, we have consistently decided differently in the last decade by rejecting Washington on this point.
Second, the majority opinion changes the very standard itself by now requiring the accused to prove that there is
a compelling reason for an examination, rather than requiring the State to show that there is a compelling need
for the protection of the child. The majority thus creates a new burden requiring the accused to establish a point
that is very difficult to prove. The accused cannot talk to the alleged child victim or the child victim's health care
experts, nor does the accused have the assistance of an expert in the area, which is why the accused brings the
motion in the first place.
In addition to shifting the burden to the accused, the majority removes the second Keeney factor from the
equation and makes it the trump card of the evaluation process. The majority holds that the determination of
whether there is a compelling need for an examination by the defense is the overriding judicial question which
must be resolved based upon the other three factors. How this will work in practice, I have not a clue. But we
should not stray from this Court's overriding judicial concern of procedural fairness. Because the criminal
process begins with a presumption of innocence, procedural fairness must always be our primary focus.
The decision today returns us to a less equitable rule of law and means that it will be much more difficult for
a person accused of child sexual assault to get the assistance of a psychologist or other appropriate health care
expert at trial, even if the State uses such an expert. This will make the trial of child sexual assault cases less
fair in some instances, and therefore the final verdict less reliable.
less fair in some instances, and therefore the final verdict less reliable.
Shearing, J., with whom Agosti, J., agrees, concurring:
I concur in the majority opinion, but write separately to respond to a statement in the other concurring
opinion.
The other concurring opinion suggests that the defendant in a child sexual assault case needs to conduct a
psychological examination of the child victim in order to level the playing field. I agree that there is no level
playing field in child sexual assault cases. However, it is my experience that in such cases, the so called
playing field is virtually always tipped heavily against the child victim, rather than against the defendant.
In my observations as a trial judge and juvenile judge, only a very small percentage of child sexual assaults
ever reach the criminal courts. Children are often too young to testify or would be too traumatized to testify
effectively. Children often do not tell others immediately about being sexually assaulted because of shame, guilt
or threats by the perpetrator. When they do tell, the adults whom they tell often refuse to believe them. Then,
instead of talking about the assault, the child victims often try to both deny it themselves and forget about it. In
their anger, they start acting out inappropriately. In an attempt to hide their pain, child victims may become drug
or alcohol abusers. Thus, they are even less likely to be regarded as good witnesses when they finally do tell,
despite the fact that the sexual assault often led to the bad behavior in the first place. Moreover, the perpetrators
almost invariably claim that the child made the allegation in response to attempts to discipline the child, which
many adults, including jurors, automatically believe.
As a trial tactic, the perpetrators often ask for a psychological examination in order to further demean and
harass the child victim. That is why I agree with the majority opinion that the defendant should be allowed to
conduct a psychological examination of the child victim only in the rare cases when there is a compelling reason
to do so. The playing field is already tipped too far in favor of the perpetrator.
____________
116 Nev. 1124, 1124 (2000) State v. Lisenbee
THE STATE OF NEVADA, Appellant, v. ROBERT HENRY LISENBEE, Respondent.
No. 32635
December 5, 2000 13 P.3d 947
Appeal from an order of the district court granting respondent's motion to dismiss the case. Sixth Judicial
District Court, Humboldt County; Jerry V. Sullivan, Judge.
Defendant, who was bound over for trial on charge of trafficking in a controlled substance, moved to dismiss
charge. The district court granted motion. State appealed. The supreme court, Leavitt, J., held that: (1) original
encounter in which police, in search for burglary suspect, asked defendant for identification was consensual; (2)
officers lacked reasonable suspicion to detain defendant after he produced prison identification card showing he
was not the person they were seeking and voluntarily lifted up tee shirt to reveal legal knife and cellular phone;
(3) officers seized defendant within meaning of Fourth Amendment by tackling him when he refused to allow
them to hold him in their search for weapons; and (4) drugs discovered along path of defendant's flight after he
broke free were not result of unreasonable seizure because his flight ended the seizure.
Young, J., with whom Rose, C. J., agreed, dissented.
Frankie Sue Del Papa, Attorney General, Carson City; David Allison, District Attorney, and Conrad
Hafen, Chief Deputy District Attorney, Humboldt County, for Appellant.
Jack T. Bullock II, Winnemucca, for Respondent.
1. Criminal Law.
Supreme court reviews findings of historical facts under the clearly erroneous standard, but the legal consequences of
those facts are questions of law that it reviews de novo.
Fourth Amendment prohibition against unreasonable searches and seizures generally prohibits government officials from
undertaking searches and seizures absent some individualized suspicion. U.S. Const. amend. 4.
3. Arrest.
Reasonable, articulable suspicion necessary for a Terry stop is more than an inchoate and unparticularized suspicion or
hunch; rather, there must be some objective justification for detaining a person.
must be some objective justification for detaining a person. U.S. Const. amend. 4.
Touchstone of Fourth Amendment analysis in seizure cases must always be that of reasonableness. U.S. Const. amend. 4.
Reasonableness in Fourth Amendment context must be determined with an objective eye in light of the totality of the
circumstances. U.S. Const. amend. 4.
6. Arrest.
Original encounter in which police officers, in their search for burglary suspect, approached defendant and asked for identification
after watching him knock on door of a home and look into window was consensual, for purposes of reasonableness analysis under
Fourth Amendment. U.S. Const. amend. 4.
7. Arrest.
Police officers lacked reasonable suspicion to detain defendant when, after asking him for identification because of his
resemblance to a particularly named burglary suspect, he produced prison identification card showing he was not the person they
sought and voluntarily pulled up his tee shirt to reveal a small legal knife and a cellular phone that were clipped to his belt. U.S. Const.
amend. 4; NRS 171.123.
8. Arrest.
Unreasonable detention equates to an unlawful seizure. U.S. Const. amend. 4; NRS 171.123.
9. Arrest.
Defendant was seized within meaning of Fourth Amendment when, after initial consensual encounter in which he showed officers
a prison identification card and pulled up tee shirt to reveal a legal knife and a cellular phone, he refused to allow them to hold him in
their search for weapons and they tackled him. Reasonable person in defendant's position would not have believed he was free to
unilaterally terminate encounter. U.S. Const. amend. 4; NRS 171.123.
10. Arrest.
Defendant's flight from officers after they unreasonably seized him did not provide reasonable suspicion of criminal activity so as
to retroactively justify the seizure. U.S. Const. amend. 4; NRS 171.123.
11. Arrest.
Flight after an illegal seizure occurs is an effectual end to that seizure, and thus, any conduct during flight should be considered
apart from the illegal police action. U.S. Const. amend. 4; NRS 171.123.
Drugs that were found along path of defendant's flight from illegal seizure were not obtained in violation of Fourth Amendment
because seizure ended when defendant broke free of officers' control. U.S. Const. amend. 4; NRS 171.123.
Voluntarily abandoned property is not subject to Fourth Amendment protections against unreasonable searches and seizures. U.S.
Const. amend. 4.
OPINION
The district court granted a motion to dismiss the State's case against respondent upon finding that
two sheriff's deputies illegally seized respondent after he had produced proof of his identity.
The district court ruled the deputies did not have reasonable suspicion to detain respondent after he
produced his identification, and all evidence subsequently discovered was illegally obtained and
inadmissible. The State filed this timely appeal claiming the deputies were justified in detaining
respondent and searching him for dangerous weapons. We reverse the district court's order dismissing
the case, and remand for further proceedings.
FACTS
At two o'clock in the afternoon, two deputies from the Humboldt County Sheriff's office were searching
for a particularly named burglary suspect. They observed respondent, Robert Henry Lisenbee, who resembled
the description of the burglary suspect. They watched Lisenbee knock on a door of a home and look into the
window of the residence. (It was later determined that the residents knew Lisenbee.) The deputies approached
Lisenbee and asked for identification. Lisenbee produced a Colorado prison identification card, and then
voluntarily pulled up his tee shirt to reveal a small Spyderco knife (a lightweight legal knife) and a cellular
phone that were both clipped to his belt.
One of the deputies reached over to grab the knife and attempted to hold Lisenbee's arm in order to
perform a pat down search. A fight ensued. Lisenbee broke free and ran from the officers. He was tackled
and brought to the ground by both officers, but he again escaped and continued in his attempt to flee. The
deputies lost sight of him for a brief period of time. Eventually, Lisenbee was found lying on the ground with
his arms outstretched, and then voluntarily submitted to police custody. Following Lisenbee's apprehension,
the deputies retraced the path taken during the pursuit and discovered a large clear plastic baggie containing
five smaller baggies of methamphetamine with a total weight of 21.7 grams.
Lisenbee was bound over to district court on a charge of trafficking in a controlled substance. However,
Lisenbee's motion to dismiss was granted by the district court on the grounds that the
deputies' actions in detaining Lisenbee,
dismiss was granted by the district court on the grounds that the deputies' actions in detaining Lisenbee, and
grabbing for Lisenbee's knife, constituted an illegal seizure. Thus, the district court held that the controlled
substance discovered after the seizure was illegally obtained and was therefore inadmissible. The State appeals.
DISCUSSION
[Headnote 1]
This case involves an appeal from a district court's ruling on a motion to dismiss based on an illegal seizure.
Fourth Amendment seizure issues, such as the one presented in this instance, often involve mixed questions of
law and fact. See United States v. Stephens, 206 F.3d 914, 917 (9th Cir. 2000). This court reviews findings of
historical facts under the clearly erroneous standard, but the legal consequences of those facts are questions of
law which we review de novo. See Hayes v. State, 106 Nev. 543, 550 n.1, 797 P.2d 962, 966 n.1 (1990).
In this instance, the district court found that the deputies were seeking a consensual encounter with
Lisenbee, and once Lisenbee presented his identification card, the deputies had reason to know that he was not
the suspected burglar. Therefore, the district court concluded that the detention should have ended at that instant,
and any evidence found at a later point was illegally obtained and in violation of the Fourth Amendment.
[Headnote 2]
The Fourth Amendment requires that the government respect [t]he right of the people to be secure in their
persons . . . against unreasonable searches and seizures. U.S. Const. amend. IV. This restraint on conduct
generally prohibits government officials from undertaking searches and seizures absent some individualized
suspicion. See Chandler v. Miller, 520 U.S. 305, 308 (1997). However, the United States Supreme Court has
stated that mere police questioning does not constitute a seizure. Florida v. Bostick, 501 U.S. 429, 434 (1991).
Similarly, this court has held that [t]he police may randomlywithout probable cause or a reasonable
suspicionapproach people in public places and ask for leave to search. State v. Burkholder, 112 Nev. 535,
538, 915 P.2d 886, 888 (1996).
[Headnote 3]
In support of investigatory conduct by police officers, the United States Supreme Court held in Terry v.
Ohio, 392 U.S. 1 (1968), that a police officer may stop a person and conduct a brief investigation when the
officer has a reasonable, articulable suspicion that criminal activity is taking place or is about to take place.
The reasonable, articulable suspicion necessary for a Terry stop is more than an inchoate and
unparticularized suspicion or hunch.' Id. at 27. Rather, there must be some objective justification for detaining
a person. Thus, a police officer may in appropriate circumstances and in an appropriate manner approach a
person for purposes of investigating possibly criminal behavior even though there is no probable cause to make
an arrest. Id. at 22.
[N]ot all personal intercourse between policemen and citizens involves seizures' of persons. Only when the
officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may
we conclude that a seizure' has occurred. Id. at 19 n.16.
The Nevada codification of Terry is found in NRS 171.123(1). The statute allows a police officer to detain
any person whom the officer encounters under circumstances which reasonably indicate that the person has
committed, is committing or is about to commit a crime. Secondarily, NRS 171.1232 permits the police to
engage in a pat down of a suspect if there is reasonable suspicion to believe that the suspect is armed and
dangerous. However, NRS 171.123(4) limits the detention of citizens to the amount of time that is reasonably
necessary to effect the purpose of ascertaining the citizen's identity. If a stop is predicated on NRS 171.123, an
officer may only perform the pat down for weapons if there is an underlying reasonable belief that the suspect
possesses dangerous weapons and is a threat to safety. NRS 171.1232.
[Headnotes 4-6]
In reviewing police action in seizure cases such as this one, the touchstone of the Fourth Amendment analysis
must always be that of reasonableness. See Florida v. Jimeno, 500 U.S. 248, 250 (1991). Reasonableness must
be determined with an objective eye in light of the totality of the circumstances. See Alabama v. White, 496 U.S.
325 (1990). In this case, the district court found that the original encounter between law enforcement officers
and Lisenbee was consensual. We agree.
[Headnote 7]
According to Terry and NRS 171.123(1), an officer can justify a detention if he can articulate a reasonable
suspicion that the citizen is about to or had committed a criminal act, or the officer has probable cause for arrest.
However, we do not conclude that reasonable suspicion has been eroded to the point that merely matching a
description, producing a prison card, and possessing a legal pocketknife and cellular phone rises to the level
necessary for Lisenbee's detention.
When looking at the totality of the circumstances before us, we agree with the district court's finding that the
officers only had a hunch that Lisenbee might be the burglary suspect they were seekingbut it was nothing
more than a hunch. When Lisenbee produced identification indicating that he was not the person sought by the
police, NRS 171.123(4) precluded the officers from detaining him. Further, Lisenbee voluntarily lifted up his
shirt and exposed his cellular phone and pocketknife as an indication that he was not armed and dangerous. This
voluntary exposure eliminated the officers' fears that Lisenbee was a safety risk based on any possession of
dangerous weapons. Furthermore, the small Spyderco knife is not considered a dangerous weapon under NRS
202.350. Therefore, under the purview of NRS 171.1232, no pat down would have been permissible since the
officers lacked reasonable suspicion that he was armed and dangerous. Additionally, Lisenbee was not in an area
known for criminal activity. Nor does his peering into a window and knocking on a door during daylight hours
amount to suspicious conduct. Accordingly, we conclude that Lisenbee's detention by the police was not
reasonable.
[Headnote 8]
Unreasonable detention equates to an unlawful seizure. See State v. Ramos, 6 P.3d 374, 383 (Haw. Ct. App.
2000). This court has held that a person is seized if, in view of all the circumstances surrounding the incident, a
reasonable person would believe that he was not free to leave. See State v. Stinnett, 104 Nev. 398, 401, 760 P.2d
124, 127 (1988) (citing United States v. Mendenhall, 446 U.S. 544 (1980)).
[Headnote 9]
Applying the Stinnett test to the facts in this case it is evident that Lisenbee was not free to leave. After
answering the officers' questions and indicating that he was unarmed, the officers tackled Lisenbee when he
refused to allow them to hold him in their search for weapons. As he escaped and began to run, he was tackled
again. A reasonable person in Lisenbee's position would not have thought he was free to unilaterally terminate
the encounter with the police. Additionally, this show of force by the police restrained Lisenbee's liberty to
depart. Regardless of whether or not Lisenbee was physically subdued during the incident, it is our conclusion
that he was not free to leave as is required by Stinnett.
[Headnote 10]
This court has held that once an individual is seized,' no subsequent events or circumstances can
retroactively justify the seizure.' Id. at 401, 760 P.2d at 127. Therefore, this court sees no merit in the
argument that Lisenbee's flight from the deputies provided a reasonable suspicion of criminal
activity.
provided a reasonable suspicion of criminal activity. Lisenbee's flight occurred after his original submission to
police authority, and after the police determined that he was not the suspected burglar they sought.
[Headnote 11]
However, it must be noted that Lisenbee's flight took place after he was initially seized by policeand not
before. The United States Supreme Court has held that [a] seizure is a single act, and not a continuous fact.
California v. Hodari, 499 U.S. 621, 625 (1991) (citing Thompson v. Whitman, 18 Wall. 457, 471 (1873)).
Therefore, we must conclude that flight after a seizure occurs is an effectual end to that seizure. Thus, any
conduct during flight should be considered apart from the illegal police action.
[Headnote 12]
In this instance, Lisenbee was no longer seized when he broke free from the officers and began to run. It is
the State's contention that Lisenbee discarded a controlled substance during this flight. Although the district
court was correct in ascertaining that the initial seizure was unlawful, the district court erred when concluding
that any evidence seized from Lisenbee's flight was fruit of a poisonous tree.
[Headnote 13]
Voluntarily abandoned property is not subject to Fourth Amendment protections. See Abel v. United States,
362 U.S. 217, 241 (1960). Therefore, [a] person who voluntarily abandons his property has no standing to
object to its search or seizure because he loses a legitimate expectation of privacy in the property and thereby
disclaims any concern about whether the property or its contents remain private.' State v. Taylor, 114 Nev.
1071, 1077-78, 968 P.2d 315, 320 (1998) (citation omitted). Based on these facts, we conclude that any
evidence found as a result of Lisenbee's flight was not obtained in violation of the Fourth Amendment.
Further, we must note as well that there is public policy that supports courts of law determining the
lawfulness of seizures or arrests rather than by the subjective intent of criminals on the streets. Pursuant to NRS
199.280, it is a misdemeanor to resist, delay or obstruct a public officer in discharging or attempting to discharge
any legal duty of his office. Although we conclude that the district court was correct in ruling the police seizure
in this instance was illegal, Lisenbee's flight from the officers was unjustified and contra to our public policy.
Lisenbee was not facing imminent and serious bodily harm at the hands of the police officer. See Batson v.
State, 113 Nev. 669, 676 n.3, 941 P.2d 478, 4S0 n.3 {1997).
480 n.3 (1997). By allowing a suspect to break free from the police after seizure, as occurred here, and then to
allow the suspect to cling to Fourth Amendment protections, would be akin to this court condoning flight from
the scene. This we refuse to do.
CONCLUSION
There is substantial evidence to support the district court's ruling that the sheriff's deputies did not have
reasonable suspicion to detain Lisenbee after he had given the police proper identification. The subsequent
action of physically restraining Lisenbee was an illegal seizure. However, because Lisenbee terminated the
seizure by breaking free from the officers' control, he cannot now complain of any violation of Fourth
Amendment rights in contraband found by the police during a subsequent sweep of the area. Accordingly, that
evidence should not be deemed fruit of a poisonous tree, and is admissible in a subsequent proceeding.
Based on the foregoing, we reverse the district court's order dismissing the case, and remand for further
proceedings.
Agosti and Becker, JJ., concur.
Maupin, J., with whom Shearing, J., agrees, concurring:
I concur with the decision of the majority that the contraband in this case was abandoned and that Lisenbee
had no standing to argue that it was seized in violation of his rights under the Fourth Amendment to the Federal
Constitution.
1
However, I believe the majority puts too fine a point on its determination that, at some point, Lisenbee was
the victim of an unlawful seizure of his person in violation of Terry v. Ohio, 392 U.S. 1 (1968) and NRS
171.123. 2

The district court found that the sheriff's deputies had no reasonable basis for believing that a crime was
committed or about to be committed.
__________

1
Thus, I agree with the majority that the seizure of Lisenbee's person terminated before his abandonment of
the contraband.

2
NRS 171.123 states in part:
1. Any peace officer may detain any person whom the officer encounters under circumstances which
reasonably indicate that the person has committed, is committing or is about to commit a crime.
. . . .
3. The officer may detain the person pursuant to this section only to ascertain his identity and the
suspicious circumstances surrounding his presence abroad. Any person so detained shall identify
himself, but may not be compelled to answer any other inquiry of any peace officer.
4. A person must not be detained longer than is reasonably necessary to effect the purposes of this
section, and in no event longer than 60 minutes. The detention must not extend beyond the place or the
immediate vicinity of the place where the detention was first effected, unless the person is arrested.
to be committed. Therefore, the district court concluded that the deputies had no justification for detaining
Lisenbee after he showed them the prison identification card. I would, respectfully, take issue with this
conclusion. There was evidence in the record that (1) the deputies had witnessed Lisenbee's suspicious behavior
near a residence, (2) they were looking for a burglary suspect who matched Lisenbee's description and who was
last seen in the same area, (3) they had not previously seen an identification card like the one carried by
Lisenbee and wanted to confirm its validity, and (4) for their own safety, while they were conducting the check
of the identification, they attempted to seize the knife and wished to make sure that Lisenbee had no other
weapons.
In my view, the deputies were within their rights to confront Lisenbee and inquire as to his identity and
purpose in the neighborhood in which their interaction occurred. When Lisenbee lifted his shirt and revealed the
presence of the knife on his person, he confirmed that he was armed. The majority concludes that his act of
revealing the knife demonstrated that he was not armed (and dangerous). In fact, he was armed. His actions
confirming this fact obviate the necessity of reaching the propriety of a pat down or frisk in this matter. The
officers had already determined Lisenbee's status as an armed individual.
3

Going further, it was not unreasonable for the officers to temporarily disarm Lisenbee until satisfied that he
was not the person whom they were seeking. It was also not unreasonable for the officers to seek confirmation of
the validity of a prison identification card. His resistance to this process did violate NRS 199.280 and, because
no excessive force was used by these officers, he was not at liberty to resort to any force in response. In short, no
person has the right to resist legal or illegal detention by police officials absent a felonious application of force
by the officer. See Batson v. State, 113 Nev. 669, 676 n.3, 941 P.2d 478, 480 n.3 (1997), in which we observed
in the margin:
In State v. Smithson, 54 Nev. 417, 428, 19 P.2d 631, 634-35 (1933) (quoting Adams v. State, 57 So. 591,
592 (Ala. 1912)), this court set forth a standard of self-defense against a police officer:
The citizen may resist an attempt to arrest him which is simply illegal, to a limited extent, not involving
any serious injury to the officer. He is not authorized to slay the officer, except in self-defense; that is
when the force used against him is felonious, as distinguished from forcible.
__________

3
That his knife was legal to carry does not alter Lisenbee's status as an armed individual that could present a
danger to the officers.
(Emphasis added.) . . . We conclude that the language of Smithson describes the right to defend oneself
or act in defense of another against police officers too broadly. Accordingly, Smithson is overruled to the
extent that it justifies the use of any force in response to anything less than a police officer's use of
unlawful and excessive force. (Emphasis added.)
I therefore agree that the district court's decision should be reversed and the case remanded for further
proceedings.
Young, J., with whom Rose, C. J., agrees, dissenting:
I agree with the majority that the first encounter was consensual and that the detention and attempted seizure
of Lisenbee's person was unlawful under Terry v. Ohio, 392 U.S. 1 (1968). However, I depart from the
majority's conclusion that Lisenbee lacks standing to object to the seizure of the contraband. I also disagree with
the majority's determination that it was improper for Lisenbee to break away from the police officers.
Lisenbee was observed, during daylight hours, in an open and exposed area not reputed for criminal activity.
He was seen first knocking on the door and then peering in the window of an acquaintance's residence. Lisenbee
initially observed the officers exit a marked police car and approach him from a distance of approximately thirty
feet. Instead of fleeing from and attempting to evade the approaching officers, Lisenbee waved to and willingly
spoke with them. He did not make any suspicious movements or gestures. Lisenbee gave the officers his correct
name and provided exculpating identification. Lisenbee then voluntarily lifted his shirt, displaying his waist area,
and revealed a legal pocketknife. The meeting between Lisenbee and the two officers was voluntary and
consensual in nature, implicating no Fourth Amendment interest.
However, Fourth Amendment scrutiny is triggered the moment an encounter between a police officer and a
person loses its consensual nature. Florida v. Bostick, 501 U.S. 429, 434 (1991). A person is seized, within the
meaning of the Fourth Amendment, if, in view of all the circumstances surrounding the incident, a reasonable
person would not believe that he was free to leave. State v. Sinnett, 104 Nev. 398, 401, 760 P.2d 124, 127
(1988).
The consensual aspect of this encounter disappeared the moment Lisenbee's arm was grabbed by one of the
officers and Lisenbee refused to submit to a more invasive search. Under such restraint, Lisenbee would not
feel free to leave and walk away and, for Fourth Amendment purposes, Lisenbee was then seized by the
officers.
Terry and its progeny instruct that law enforcement officers may seize and search individuals based on a
reasonable suspicion of criminal activity derived from specific and articulable facts which, taken together with
the rational inferences from those facts, reasonably warrant that intrusion. Terry, 392 U.S. at 21-22. The
detaining officers must have a particularized and objective basis for suspecting the particular person stopped of
criminal activity. United States v. Cortez, 449 U.S. 411, 417-18 (1981). The officers in this case unlawfully
invaded Lisenbee's sanctity.
Although he may have, in some way not articulated, fit the vague description of the burglary suspect, any
suspicion that Lisenbee was the sought-after burglar was dispelled the instant he provided the officers with
identification. Even if Lisenbee had no identification on his person, the officers had no basis to continue
detaining him. Lisenbee should have been free to leave because the rationale for stopping him had dissipated and
the evidence indicated, using the Terry standard, that the officers lacked the necessary reasonable suspicion to
justify his continued detention.
A police officer who has stopped someone because of suspected criminal activity may conduct a search of
the person for weapons if the officer reasonably suspects that the person is dangerous. Terry, 392 U.S. at 30; see
NRS 171.1232. Terry requires reasonable, individualized suspicion [that a suspect is armed] before a frisk for
weapons can be conducted. Maryland v. Buie, 494 U.S. 325, 334 n.2 (1990). The evidence in this case never
suggested or indicated that Lisenbee posed a danger to the officers' safety.
Lisenbee's conduct was not threatening. The evidence did not suggest that he was carrying a concealed
weapon. I cannot assume on these facts that Lisenbee posed a threat to the officers because he carried a legal
pocketknife. The attempted frisk after he voluntarily exhibited the knife was illegal and the officers should have
released him. If we conclude that the officers acted reasonably in this instance, this court would be concluding
that officers have the requisite reasonable suspicion to frisk a person in rural Nevada when the person voluntarily
shows he is carrying a legal pocketknife.
Further, in United States v. Burton, 228 F.3d 524 (4th Cir., 2000), a police officer did not maintain a
sufficient basis to suspect that the defendant, who refused to provide identification, answer any questions, or
comply with repeated requests to remove his hand from his coat pocket, was engaged in criminal activity. The
officer testified that the defendant's inaction made him feel uneasy about [his] safety and thought that the
defendant possibly had a weapon in his pocket. Id. at 526. However, the court concluded that the officer's
reaching inside [defendant's] coat was an unlawful search . . . and the handgun discovered must
therefore be suppressed" because the officer did not initially have sufficient reasonable
suspicion, under Terry, that criminal activity was afoot.
was an unlawful search . . . and the handgun discovered must therefore be suppressed because the officer did
not initially have sufficient reasonable suspicion, under Terry, that criminal activity was afoot. Id. at 529. Here,
Lisenbee gave a significantly lesser impression that he was involved in criminal activity and posed a
considerably smaller threat to the officers' safety than the defendant in Burton.
In light of the evidence, I question whether it was improper for Lisenbee to break away and attempt to
preserve his freedom. According to the majority, Lisenbee's flight from the police ended the unlawful seizure
and his subsequent conduct during flight should be considered apart from the illegal police action. If Lisenbee
had attempted to slowly walk away, would the officers still be acting lawfully in seizing him? This was not at a
crime scene. The officers had no particularized and objective basis for further detention.
Here, the police misconduct was infected with sufficient infirmities to render Lisenbee's abandonment of the
contraband involuntary. Abandonment of property in response to police investigation does not, per se, render
abandonment involuntary. See United States v. Humphrey, 647 F.2d 995, 998 n.5 (9th Cir. 1981) (citing United
States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973)). There must be a nexus between the allegedly unlawful
police conduct and abandonment of property if the challenged evidence is to be suppressed. United States v.
Haddad, 558 F.2d 968, 975 n.6 (9th Cir. 1977). Lisenbee's actions were triggered by the original illegal
intrusion, and the contraband evidence is thus inadmissible as fruit of the poisonous tree. Wong Sun v. United
States, 371 U.S. 471 (1963).
The abandonment of the contraband was not an act of free will on Lisenbee's part sufficient to purge the taint
of his initial stop and the attempted pat down as suggested by the majority. The contraband was involuntarily
abandoned as a product and direct consequence of the illegal seizure. It would be absurd to view Lisenbee's act
of abandonment as coincidental; his actions were foreseeable and predictable. The majority appears to have
overlooked the wealth of authority indicating that contraband abandoned during flight is inadmissible if it is the
product of a prior illegal search or seizure. See United States v. Beck, 602 F.2d 726, 729-30 (5th Cir. 1979)
(concluding that [w]hile it is true that a criminal defendant's voluntary abandonment of evidence can remove
the taint of an illegal stop or arrest [citation omitted], it is equally true that for this to occur the abandonment
must be truly voluntary and not merely the product of police misconduct); United States v. Gilman, 684 F.2d
616, 620 (9th Cir. 1982) (concluding that a loss of standing to challenge a search cannot be brought
about by unlawful police conduct" [citation omitted]);
cannot be brought about by unlawful police conduct [citation omitted]); State of New Jersey v. Tucker, 642
A.2d 401, 409 (N.J. 1994) (holding that because there was an unreasonable seizure . . . the goods were not
abandoned); Smith v. Commonwealth of Virginia, 407 S.E.2d 49, 52 (Va. Ct. App. 1991) (holding that since
the search of the defendant was not justified by the circumstances, the discovery of the cocaine was the product
of an illegal search and, therefore, inadmissible into evidence).
The district court's order suppressing the evidence should be affirmed. To admit the contraband into evidence
would likely encourage similar Fourth Amendment violations in the future. Therefore, I respectfully dissent.
____________
116 Nev. 1136, 1136 (2000) Proferes v. State
JOSEPH LEE PROFERES, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 33729
December 5, 2000 13 P.3d 955
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of possession of a controlled
substance for the purpose of sale. The district court sentenced appellant to serve a prison term of a minimum of
twelve (12) months and a maximum of thirty (30) months. Fourth Judicial District Court, Elko County; J.
Michael Memeo, Judge.
Defendant entered conditional plea of guilty in the district court to possession of a controlled substance for
purpose of sale. Defendant appealed denial of motion to suppress evidence. The supreme court, Leavitt, J., held
that: (1) practice and procedure of seizing and searching anyone, such as defendant in present case, who knocks
on a door during the execution of a search warrant on a residence violates the Fourth Amendment; (2)
inculpatory statement and drugs found in defendant's coat pocket had to be suppressed as resulting from
non-Mirandized custodial interrogation conducted following seizure of defendant; and (3) drugs were not
admissible under inevitable discovery rule.
Frederick B. Lee, Jr., Public Defender, Elko County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Gary D. Woodbury, District Attorney, and
Robert J. Lowe, Deputy District Attorney, Elko County, for Respondent.
1. Arrest.
Police officer may stop and detain a suspect for questioning regarding possible criminal behavior, but only when the officer has a
reasonable, articulable suspicion that the person is engaged or is about to engage in criminal activity. U.S. Const. amend. 4.
2. Arrest.
To justify stop and detention of a suspect for questioning, there must be some objective information to support a reasonable
suspicion connecting the person to criminal activity. U.S. Const. amend. 4.
Practice and procedure of seizing and searching anyone who knocks on a door during the execution of a search warrant on a
residence violates the Fourth Amendment. U.S. Const. amend. 4.
4. Criminal Law.
As general rule, a defendant's non-Mirandized inculpatory statement is inadmissible at trial.
5. Criminal Law.
Question to defendant as to whether he had any weapons, guns, or controlled substances on his person was custodial
interrogation, and thus absence of prior Miranda warnings required suppression of yes response and drugs discovered in defendant's
coat pocket, where officers had handcuffed defendant outside residence where search warrant was being executed and taken him inside
house.
6. Criminal Law.
Methamphetamine that defendant indicated was in his coat pocket, during non-Mirandized custodial interrogation that was
conducted following his illegal seizure at entrance to apartment where search warrant was being executed, was not admissible under
inevitable discovery rule. While a check of outstanding warrants of persons detained at the site allegedly would have shown such a
warrant for defendant, no inevitable discovery of the drugs would have occurred absent the illegal seizure. U.S. Const. amend. 4.
OPINION
Appellant Joseph Lee Proferes appeals from the judgment entered upon his conviction for possession
of a controlled substance for the purpose of sale. He challenges an adverse determination of the district
court on his pretrial motion to suppress evidence. We reverse and remand.
FACTS
Elko City SWAT team officers were in the process of executing a search warrant inside a residence when
appellant and a companion knocked on the door.
1
The officers answered the door and directed
appellant and his companion to enter the house.
__________

1
Appellant testified that he went to the residence to get a spare set of keys to his pickup truck.
directed appellant and his companion to enter the house. The companion complied, but appellant turned and ran.
The officers tackled him in the front yard, handcuffed him, and took him inside the house.
After returning to the house, as one of the officers was performing a pat down search of appellant, another
officer asked appellant if he had any weapons, guns, or controlled substances on his person. Appellant said,
Yes. As he replied, he gestured toward his coat pocket. The officer reached inside and removed a package
containing methamphetamine.
Appellant filed a motion to suppress both his statement made in response to the police questioning and the
methamphetamine. He claimed that he was illegally detained after he knocked on the door, and that after the
officers placed him in custody he was not given Miranda
2
warnings. The district court held a suppression
hearing and denied the motion. Appellant entered into a plea bargain whereupon he pleaded guilty to one count
of possession of a controlled substance for the purpose of sale, reserving the right, pursuant to NRS 174.035(5),
3
to seek this court's review of the district court's order denying the motion to suppress evidence.
At the hearing on the suppression motion, an officer testified that the procedure and practice of the Elko
police officers while executing a search warrant on a residence for controlled substances is to apprehend any
person who knocks on a door, handcuff the person, and conduct a pat down search. The person's identity is
verified, the officers interrogate him or her concerning any knowledge of controlled substances in the residence,
and a check is made to determine if the person has any outstanding warrants. If one does not step into the
residence voluntarily, an officer uses reasonable force to bring him or her physically into the residence.
DISCUSSION
The district court's findings in a suppression hearing will be upheld unless this court is left with the
definite and firm conviction that a mistake has been committed. ' State v. Harnisch, 113 Nev. 214, 219, 931
P.2d 1359, 1363 (1997) (quoting United States v. Traynor, 990 F.2d 1153, 1157 (9th Cir. 1993) (quoting
United States v. Gypsum Co., 333 U.S. 364, 395 (1948))).
__________

2

3
NRS 174.035(3) provides in pertinent part as follows:
With the consent of the court and the district attorney, a defendant may enter a conditional plea of
guilty . . . reserving in writing the right, on appeal from the judgment, to a review of the adverse
determination of any specified pretrial motion. A defendant who prevails on appeal must be allowed to
withdraw the plea.
[F]indings of fact in a suppression hearing will not be disturbed on appeal if supported by substantial
evidence.' Id. (quoting State v. Miller, 110 Nev. 690, 694, 877 P.2d 1044, 1047 (1994)).
Suspicion necessary for detention
[Headnotes 1, 2]
A police officer may stop and detain a suspect for questioning regarding possible criminal behavior. Terry
v. Ohio, 392 U.S. 1, 21 (1968). However, detention must be made only when the officer has a reasonable,
articulable suspicion that the person is engaged or is about to engage in criminal activity. Id. at 27. There
must be some objective information to support a reasonable suspicion connecting the person to criminal activity.
Brown v. Texas, 443 U.S. 47, 51 (1979).
In United States v. Rembert, 838 F. Supp. 1336, 1338 (D. Minn. 1993), a search was conducted in an
apartment pursuant to a search warrant, when the defendant knocked on the door. A police officer answered the
door and grabbed the defendant when he asked for Black, the name of the person selling crack cocaine out of
the apartment. See id. The officer performed a pat down search and recovered a loaded gun and drugs. See id.
The defendant subsequently moved to suppress the evidence, and the court held that the gun and drugs were
fruits of an illegal search because the officer did not have a reasonable suspicion to justify a detention of the
defendant. See id. at 1341; see also United States v. Clay, 640 F.2d 157, 162 (8th Cir. 1981) (holding that where
the defendant walked up to a house where a search warrant was being executed, knocked on the door and was
detained and frisked by the police that [t]he initial frisk of appellant was simply not supported by a reasonable
belief that he was armed and presently dangerous, a belief which the Supreme Court has invariably held must
form the predicate to a pat down search of a person for weapons).
[Headnote 3]
The practice and procedure of seizing and searching anyone who knocks on a door during the execution of a
search warrant on a residence violates the Fourth Amendment. Any evidence recovered must be suppressed
unless the police officers have a reasonable suspicion based on objective information that the person knocking
on the door has committed, is committing or is about to commit a crime. NRS 171.123(1). Here, the officers
had nothing more than a hunch that appellant was engaged in any criminal activity or was armed and
dangerous. Before appellant knocked on the door of the residence and refused to step in, there was no evidence
linking him to any criminal act, let alone the "reasonable articulable suspicion" of criminal activity
required by Terry.
the reasonable articulable suspicion of criminal activity required by Terry.
The State contends it is common knowledge that the controlled substance industry relies heavily upon
firearms. Police officers who fight this menace should not have to second guess themselves regarding their own
safety. See United States v. McMurray, 34 F.3d 1405, 1410 (8th Cir. 1994).
In McMurray, the appellate court held the police officers had a reasonable suspicion that McMurray was
dealing drugs and was armed and dangerous prior to the detention and seizure. See id. The police were informed
by a hotel employee of the actions of the occupants in a room whose behavior matched that of drug dealers. See
id. at 1409. After a period of surveillance, the officers knocked on the door. See id. McMurray was captured,
and a pat down search revealed drugs on his person. See id. at 1409-10. The court ruled the search was justified
because the officers had a reasonable articulable suspicion that he was involved in criminal activity based on the
hotel employee's tip and the surveillance. See id. at 1410.
Unlike McMurray, the officers in this case did not have an informer's tip as to Proferes' behavior and
performed no surveillance before detaining him. Instead, the officers testified that the procedure in such cases
was to routinely ask anyone who came to the door to enter the house, handcuff them and conduct a pat down
search. If they refused to enter voluntarily, reasonable force was applied to force entry. Under this policy,
anyone, however innocent, who happened to knock on a door during the execution of a search warrant, would be
subjected to seizure and search.
The seizure of Proferes was based solely on his mere presence at a location where police were conducting a
search warrant and as such, violated his right to be free from unreasonable seizures under the Fourth
Amendment. See Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (citing Sibron v. New York, 392 U.S. 40, 62-63
(1968)).
Violation of Miranda rights
After his capture, appellant was brought to the residence, handcuffed, and an officer began a pat down
search. Appellant had not been advised of his Miranda rights when another officer asked him if he had any
weapons, guns, or controlled substances on his person. He answered, Yes, and indicated toward his coat
pocket. From the pocket, the officer removed a packet containing methamphetamine.
[Headnote 4]
In State v. Hall, 600 A.2d 1248, 1249-50 (N.J. Super. Ct. Law Div. 1990), the defendant was directed to
enter a residence during the execution of a search warrant.
ing the execution of a search warrant. The New Jersey court ruled the defendant was entitled to Miranda
warnings before he was asked whether he had anything on his person. See id. at 1250. Thus, the defendant's
statement regarding possession of cocaine and the cocaine itself was suppressed. See id. at 1254. It is a well
established general rule that a defendant's non-Mirandized inculpatory statement is inadmissible at trial. See
United States v. Polanco, 93 F.3d 555 (9th Cir. 1996).
[Headnote 5]
Under the totality of the circumstances in this case, Proferes' statement to the police and the
methamphetamine seized must be suppressed. Proferes was in custody, handcuffed, and not free to leave. As
such, the question put to him by law enforcement concerning whether he had drugs in his possession constituted
a non-Mirandized custodial interrogation. The discovery of the drugs resulted from the illegal questioning.
Inevitable discovery rule
[Headnote 6]
The State argues that the inevitable discovery rule applies in this case because the police check everybody
that arrives at a residence where a search warrant is being executed for outstanding warrants and they would
have discovered an outstanding warrant for Proferes. As a result, he would have been arrested and the
methamphetamine would have been inevitably discovered when he was booked into jail.
The inevitable discovery doctrine states that evidence obtained in violation of the Constitution could still
be admitted at trial if the government could prove by a preponderance of the evidence that the information
ultimately or inevitably would have been discovered by lawful means.' United States v. Lang, 149 F.3d 1044
(9th Cir. 1998), cert. denied, 119 S. Ct. 1809 (1999) (quoting Nix v. Williams, 467 U.S. 431, 444 (1984)). The
Supreme Court also explained that [t]he inevitable discovery doctrine, with its distinct requirements, is in
reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if
in fact discovered through an independent source, it should be admissible if it inevitably would have been
discovered. Murray v. United States, 487 U.S. 533, 539 (1988).
In Hall, the New Jersey Superior Court observed:
The violation of defendant's Miranda rights requires suppression of the cocaine as well as the
statement, unless the State proves by clear and convincing evidence that the cocaine would inevitably
have been discovered by valid means.
The inevitable discovery rule would apply if this Court found by clear and convincing evidence that
(1) proper police procedures were or would have been pursued with respect to Dexter Hall; (2) such
procedures would inevitably have uncovered the CDS
[4]
on the bill in his pocket; and (3) the discovery
would have been wholly independent of the defendant's unwarned response to the detective's question.
For the reasons set forth in Section V. below, the State has not proved that the CDS was or inevitably
would have been discovered.
. . . .
The police had no valid reason for the pat-down, nor for a search of defendant. The CDS that he had
in his pocket must be suppressed both because of the Fourth Amendment violation and the Miranda
violation.
Hall, 600 A.2d at 1251-52, 1254 (citations omitted) (footnote added).
Proper police procedures were not pursued in appellant's case because the officers lacked any reasonable
suspicion that Proferes was involved in any criminal activity, and the discovery of the controlled substance
would not have been made independent of the seizure and Proferes' unwarned response to the officer's question.
If the officers had not illegally seized Proferes, they would not have inevitably discovered the contraband.
CONCLUSION
We have reviewed the district court's order denying the motion to dismiss pursuant to NRS 174.035(3) and
for the reasons stated above conclude the district court erred. We reverse and remand this case to the district
court to allow the defendant to withdraw his plea of guilty and for further proceedings consistent with this
opinion.
Rose, C. J., Young, Shearing, Agosti and Becker, JJ., concur.
I agree that the evidence in this case should be suppressed for the reasons stated by Leavitt, J., in his
majority opinion. I write separately to note that the detention in this case, having been illegally effected, was
entirely different from that described in State v. Lisenbee, 116 Nev. 1124, 13 P.3d 947 (2000) (Maupin, J.,
concurring). I further note that whether Proferes' resistance to the detention was itself legal or illegal, see
Batson v. State, 113 Nev. 669, 676 n.3, 941 P.2d 478, 480 n.3 (1997), is not determinative of whether the
fruits of the improper detention and interrogation should be suppressed.
__________

4
CDS is cocaine.
of whether the fruits of the improper detention and interrogation should be suppressed.
____________
116 Nev. 1143, 1143 (2000) Clark County School Dist. v. Riley
CLARK COUNTY SCHOOL DISTRICT, Appellant, v. JOHN H. RILEY, Respondent.
No. 30274
December 5, 2000 14 P.3d 22
Appeal from declaratory judgment following a district court order granting summary judgment to
Respondent upholding Respondent's postprobationary teacher status. Eighth Judicial District Court, Clark
County; Sally L. Loehrer, Judge.
Postprobationary teacher filed a motion for declaratory judgment to determine his teaching status after
district purportedly terminated him. The district court entered summary judgment in favor of teacher, and school
district appealed. The supreme court held that: (1) district's failure to follow statutory notice requirements when
terminating teacher effectively rendered teacher's termination void, and (2) collective bargaining agreement did
not bar teacher's action.
Affirmed.
Daniel S. Hussey, Assistant General Counsel, Las Vegas, for Appellant.
Dyer, Lawrence, Cooney & Penrose, Carson City, for Respondent.
Supreme court reviews orders granting summary judgment de novo.
2. Schools.
School district violated statute governing termination of postprobationary teachers by giving postprobationary teacher only four
days' notice before terminating him and failing to apprise him of his right to a hearing. NRS 391.317(1).
3. Schools.
School district's failure to follow statutory notice requirements when terminating postprobationary teacher effectively rendered
teacher's termination void.
4. Labor Relations.
Although arbitrators have the authority to receive contractual grievances, supreme court has jurisdiction to determine questions of
statutory law that may or may not fall outside of collective bargaining agreements.
5. Labor Relations.
Arbitration is required if the parties have collective bargaining agreement restricting the resolution of statutory grievances to that
effect.
6. Declaratory Judgment; Labor Relations.
Collective bargaining agreement did not bar postprobationary teacher's declaratory judgment action to determine his teaching
status with school district after district purportedly terminated him, where there was no agreement between teacher and district to
submit any claims to arbitration, and teacher's claim was based on his statutory rights as a postprobationary teacher, rendering his
claim judicially reviewable.
OPINION
Per Curiam:
This case involves the Clark County School District's (CCSD) notice of termination to John H. Riley and
CCSD's subsequent refusal to recognize his status as a postprobationary teacher.
1
Riley filed a complaint
for a declaratory judgment to determine his teaching status with CCSD. The district court granted summary
judgment for Riley, concluding that he retained his postprobationary teaching status and the accompanying
privileges. CCSD appeals that order, arguing that: (1) Riley's postprobationary status was revoked when he
was terminated on November 21, 1995, and subsequently rehired on December 1, 1995, and (2) a collective
bargaining agreement bars Riley's declaratory judgment action. We conclude that Riley was not properly
terminated pursuant to NRS 391.317, and therefore he never lost his postprobationary status. Moreover, we
conclude that the collective bargaining agreement does not apply to the instant case. Accordingly, the district
court properly granted summary judgment, and we affirm.
STATEMENT OF FACTS
CCSD hired John H. Riley as a probationary music teacher for the 1993-1994 school year. At the end of
the year, CCSD reemployed Riley for the 1994-1995 school year as a postprobationary teacher, pursuant to
NRS 391.3197.
2
On November 17, 1995, CCSD notified Riley in writing that his teaching license was
invalid, and that he would be terminated by November 21, 1995, unless he remedied a defect in
connection with his licensure by that time.
__________

1
We originally dismissed this appeal in an unpublished order on March 2, 2000. On March 17, 2000,
respondent filed a motion to publish the order. Cause appearing, we grant the motion and publish this
opinion in place of our prior unpublished order.

2
At the time of Riley's employment, NRS 391.3197 required a probationary period of one year before
being considered a postprobationary employee. The statute has since been amended to require a probationary
period of two years.
unless he remedied a defect in connection with his licensure by that time.
3
Riley was unable to remedy the
defect within the time allotted, and was not allowed to teach after November 21, 1995. CCSD rehired Riley on
December 1, 1995, after he provided the necessary documentation and reapplied for the position. CCSD
reclassified Riley as a probationary teacher for the 1995-1996 and 1996-1997 school years, and Riley signed an
offer of employment and two successive Probationary Contracts to that effect.
Prior to his employment with CCSD, Riley taught for many years in Southern California and was duly
accredited in California. The Nevada Department of Education issued Riley a provisional teaching certificate
upon his move to Nevada. The provisional teaching certificate required Riley to pass or establish an exemption
from certain competency tests on or before November 18, 1995. Once the provisions were cleared, Riley's
license would remain in effect until July, 1999.
Because of Riley's extensive teaching experience in California and his successful completion of similar
competency tests in California, Riley qualified for an exemption from renewed competency testing in Nevada.
See NAC 391.036(3)-(4). Riley's licensing file contained letters from his previous California employers,
documenting his teaching experience and successful completion of equivalent competency testing. Until his
receipt of the November 17, 1995, notice from CCSD, Riley had no reason to believe he had not cleared his
provisional requirements on his license.
Following issuance of the notice of non-compliance, CCSD informed Riley for the first time that the letters
from his California employers were insufficient because of the technicality that they were not on proper Nevada
Department of Education forms. Riley was unable to submit the proper forms by November 21, 1995. CCSD did
not allow Riley to teach until he cleared the provisions.
__________

3
The letter provided, in pertinent part (emphasis omitted):
The Nevada Administrative Code (NAC 391.025) places responsibility of proper licensing, at all times,
upon the employee. A licensed employee cannot be legally employed in the public schools of Nevada
unless the employee holds a valid Nevada teaching license of appropriate classification. If provisions are
not removed from a Nevada Teaching license by the removal date, the license becomes invalid.
We have been notified by the Nevada State Department of Education that provision(s) on your Nevada
teaching license has not been removed. Therefore, if the Department of Education does not notify us on
the clearance of your Nevada teaching license by the end of the day, Tuesday, November 21, 1995, you
will be removed from your assignment and your resignation will be submitted to the Board of School
Trustees effective the end of the day, November 21, 1995.
provisions. On November 30, 1995, Riley provided the completed forms to the Nevada Department of Education
and reapplied for his prior position.
4
CCSD rehired him and classified him as a probationary teacher.
Riley filed a complaint for a declaratory judgment, arguing that his employment was never actually
terminated, and, in the alternative, that such termination was unlawful because it failed to comply with NRS
391.317; therefore, Riley argued, he retained his postprobationary status. CCSD contended that Riley was
terminated on November 21, 1995, and was properly classified as a probationary teacher upon his rehiring.
CCSD also argued that because Riley was rehired on December 1, 1995, the collective bargaining agreement
between CCSD and the Clark County Classroom Teachers Association governed his rights, and he was barred
from pursuing judicial remedies.
On March 4, 1997, the district court granted summary judgment in favor of Riley. The district court
concluded that Riley became a postprobationary teacher no later than September 1, 1994, and retained that status
continuously, notwithstanding the purported termination of November 21, 1995. This timely appeal followed.
DISCUSSION
This case substantially hinges on whether Riley was properly terminated on November 21, 1995. We
conclude that he was not. Because Riley was not afforded the procedures to which he was entitled by statute, we
conclude that Riley was not actually terminated, and we therefore affirm the district court's grant of summary
judgment, permitting Riley to maintain his postprobationary status.
[Headnote 1]
We review orders granting summary judgment de novo. See Bulbman, Inc. v. Nevada Bell, 108 Nev. 105,
110, 825 P.2d 588, 591 (1992). Summary judgment is appropriate when there are no genuine issues of material
fact and the party is entitled to summary judgment as a matter of law. See Posadas v. City of Reno, 109 Nev.
448, 452, 851 P.2d 438, 441-42 (1993); see also NRCP 56.
__________

4
CCSD and Riley disagree as to whether he was reemployed effective November 30, 1995, or December 1,
1995. CCSD argues that the effective date is relevant because it determines whether the collective bargaining
agreement applies. However, as we state in our opinion, because Riley was not properly terminated, we conclude
that this dispute is not material for the determination of this case.
1. At least 15 days before recommending to a board that it demote, dismiss or not reemploy a
postprobationary employee, or dismiss or demote a probationary employee, the superintendent
shall give written notice to the employee, by registered or certified mail, of his intention to make
the recommendation.
2. The notice must:
(a) Inform the licensed employee of the grounds for the recommendation.
(b) Inform the employee that, if a written request therefor is directed to the superintendent within
10 days after receipt of the notice, the employee is entitled to a hearing before a hearing
officer.
(c) Inform the employee that he may request appointment of a hearing officer from a list provided
by the American Arbitration Association and that one will be appointed if the superintendent
agrees in writing.
(d) Refer to chapter 391 of NRS.
[Headnotes 2, 3]
Pursuant to NRS 391.317(1), as a postprobationary teacher, Riley was entitled to fifteen days' notice prior to
being terminated. CCSD was also required to notify Riley of his right to a hearing. See NRS 391.317(2)(b).
CCSD gave Riley only four days' notice before terminating him and did not apprise him of his right to a hearing.
Regardless of whether Riley was properly licensed, he was employed as a postprobationary teacher for over a
year. See NRS 391.311(5); 391.3197. He was entitled, therefore, to all statutory procedures and protections
afforded to that position. See NRS 391.317. CCSD's failure to follow NRS 391.317 effectively renders Riley's
termination void. Because the facts as to Riley's notification are undisputed, we conclude that the district court
correctly granted summary judgment for Riley, and we affirm the determination of Riley's status as that of a
postprobationary teacher.
[Headnotes 4-6]
CCSD further argues that the collective bargaining agreement between CCSD and the Clark County
Classroom Teachers Association bars Riley's declaratory judgment action.
5
We do not agree.
__________

5
The collective bargaining agreement (CBA) requires any grievance to be submitted to arbitration. The CBA
defines grievance as:
any dispute which arises regarding an interpretation, application or alleged violation of any of the
provisions of this Agreement. . . . A grievance shall not include any matter or action taken by the
School
agree. Although arbitrators have the authority to receive contractual grievances, this court has jurisdiction to
determine questions of statutory law that may or may not fall outside of collective bargaining agreements. See
Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974); see also Spiewak v. Board of Educ., 447 A.2d 140, 147
(N.J. 1982). Arbitration is required if the parties have an agreement restricting the resolution of statutory
grievances to that effect. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 35 (1991).
There is no agreement between Riley and CCSD to submit any claims to arbitration. Riley's claim is based on
his statutory rights as a postprobationary teacher, rendering his claim judicially reviewable. Nor can CCSD rely
on the terms of the collective bargaining agreement. Section 36-8-3 of the collective bargaining agreement does
not govern this case because Riley was currently employed as of December 1, 1995. The dispute as to whether
Riley was reinstated on November 30 or December 1 is irrelevant, since we conclude that his rehiring was a
fiction. Accordingly, Riley's action is properly before the court, and we conclude that the collective bargaining
agreement does not affect his claim.
CONCLUSION
We conclude that the district court properly granted summary judgment to Riley. Because CCSD failed to
follow the statutory notice provisions elucidated in NRS 391.317, Riley was not terminated, and therefore he did
not lose his postprobationary teaching status. Nor does the collective bargaining agreement apply to preclude
his claim.
Accordingly, we affirm the order of the district court.
__________
Trustees, or any of its agents, for which relief is granted by the statutes of Nevada.
CBA 4-1 (emphasis added).
The CBA also provides: A teacher hired on or after December 1 of any school year shall be a probationary
teacher for the remainder of that school year and for the ensuing school year. CBA 36-8-3 (emphasis
added).
____________
116 Nev. 1149, 1149 (2000) Wegner v. State
ALICA DANEEN WEGNER, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 33928
December 5, 2000 14 P.3d 25
Appeal from a judgment of conviction, pursuant to a jury verdict, of first degree murder. The court sentenced
appellant to life in prison with the possibility of parole after twenty years. Eighth Judicial District Court, Clark
County; Mark W. Gibbons, Judge.
Defendant, a licensed day care operator, was convicted following jury trial in the district court of first degree
murder in connection with death of fourteen-month-old child who was left in her care. Defendant appealed. The
supreme court, Shearing, J., held that: (1) instruction that child abuse was conclusive evidence of malice
aforethought was erroneous, (2) instruction was not harmless, and (3) evidence supported an instruction on
lesser-included offense of involuntary manslaughter.
1. Homicide.
Child abuse is not conclusive evidence of malice aforethought in prosecution for first degree murder by means of child abuse. NRS
200.030(1)(a), 6(a).
2. Criminal Law.
Erroneous jury instructions are reviewable according to a harmless error analysis.
3. Criminal Law.
Where a defendant has contested the omission of an element of offense from jury instructions and there is sufficient evidence to
support a contrary finding as to that element, error in omitting that element is not harmless.
4. Homicide.
Error in instructing jury that child abuse was conclusive evidence of malice aforethought was not harmless in first degree murder
prosecution arising from death of fourteen-month-old child who was left in care of defendant, a licensed day care operator, and was
found to have sustained skull fracture. Case involved only one instance of alleged child abuse, and jury may have concluded from
conflicting medical evidence that defendant, without malice aforethought, committed child abuse that aggravated a previous injury.
NRS 200.030(1)(a), 6(a).
5. Homicide.
Evidence that fourteen-month-old child's death while in care of defendant, a licensed day care operator, may have resulted from a
fall, or some mechanism other than child abuse,
or some mechanism other than child abuse, that aggravated a preexisting injury to child's skull supported an instruction on
lesser-included offense of involuntary manslaughter in prosecution for first degree murder by means of child abuse. That evidence
permitted conclusion that death was not product of malice aforethought but possibly a result of neglect or endangerment. NRS
200.030(1)(a), 6(a).
6. Criminal Law.
A defendant is entitled to a lesser-included offense instruction when the theory of the defense is consistent with a conviction for
the lesser offense.
OPINION
Alica Wegner, a licensed day care operator in Las Vegas, was convicted of first degree murder for the
March 1997 death of fourteen-month-old Kierra Harrison. The district court sentenced Wegner to life in
prison with the possibility of parole after twenty years. We reverse Wegner's conviction and remand the
case for a new trial because of flawed and omitted jury instructions.
FACTS
Kierra Harrison lived with her parents, Amanda and Seth Harrison, and a family friend, Adam
Henderson, in a two bedroom apartment in Las Vegas. In January 1997, Amanda decided to return to work,
so she contacted Wegner to care for Kierra. Amanda hired Wegner to care for her daughter as of February
17, 1997.
On February 25, 1997, Kierra received measles, mumps, and rubella vaccination shots. The evening
following the vaccinations, Kierra began vomiting and was taken to the hospital by her parents. Kierra was
released from the hospital and attended day care for the final three days of the work week. During those
days, Kierra was not interested in eating but her health seemed to be improving. Over the weekend, Amanda
testified, Kierra went to the park, played, and ate dinner.
On Monday, March 3, 1997, Kierra arrived at Wegner's house at approximately 7:30 a.m. Kierra was
crying when she was dropped off. Wegner's three children, ages six years, two years and six weeks, were also
present. Around 4:00 p.m., Amanda received a phone call informing her that Kierra had fallen, that she
might be experiencing a seizure, and that she was being taken to the hospital. When Seth arrived at Wegner's
house, Wegner told Seth that she had heard Kierra crying in the playroom. When she went to the
playroom, she found Kierra on the floor.
she went to the playroom, she found Kierra on the floor. Wegner stated that she picked her up and put her in a
crib with a bottle. Later, Wegner checked on Kierra and found her turning a strange color, so she called the
emergency 9-1-1 number.
When the paramedics arrived at 4:05 p.m., they found Kierra unconscious and unresponsive. They checked
her head for signs of trauma or swelling but found nothing. Kierra was then placed on mechanical ventilation.
Wegner told the paramedics that the children had been roughhousing and that she thought the child might
have fallen and hit her head. She said that Kierra had become cranky, so she put her in a bed with a bottle. One
of the paramedics who spoke to Wegner, Brett Benson, testified that Wegner was upset, but not hysterical.
Benson checked Kierra for head injuries in the ambulance on the way to the University Medical Center
(UMC), but discovered nothing in that regard. Later, Benson returned to the hospital and noticed considerable
swelling in the back of her head and neck that he did not recall seeing previously.
Amanda testified that, upon seeing Kierra at the hospital, Kierra was pale, her eyes were closed, and the back
of her head was swollen. After a CAT scan, Dr. John Anson (the examining physician) informed Amanda and
Seth that Kierra's skull was fractured and there was evidence of a possible blood clot. Although Kierra
underwent surgery, she died on March 5, 1997. Wegner was subsequently arrested and charged with Kierra's
murder.
Crime scene detectives and analysts found that the dining room, living room, and playroom all had normal
carpeting on the floors. In a playpen there was a mattress and a variety of toys. In another room there was a crib
with a mattress, one toy, and a bottle in it.
At trial, Shellene Renteria and Jennifer Cerone testified that they were at Wegner's day care operation on the
afternoon of March 3rd. Renteria testified that she arrived at Wegner's day care address shortly after 2:45 p.m.
for an interview. Wegner showed Renteria the facilities, including the day care room, the kitchen, and the
backyard. They discussed routines and fees. Wegner did not show Renteria the back bedrooms where the
children were sleeping. Renteria stated that Wegner did not appear stressed. Renteria left around 3:30 p.m.
Cerone testified that she arrived at Wegner's around 4:00 p.m. on March 3rd. Wegner answered the doorbell
with a limp Kierra in her arms. Wegner was trying to resuscitate the child in her arms, but the child was then
placed on the floor and Cerone started CPR. They discovered that Kierra had a pulse and was breathing. Wegner
asked Cerone to call Amanda to inform her of Kierra's medical emergency.
Kierra's medical emergency. Cerone testified that Wegner was crying and that she said something to the effect of
I hope this baby doesn't die. I hope I didn't do anything wrong. Ten days later, after Cerone saw the news and
formed opinions about the case, Cerone told the police that she thought Wegner's crying was an act.
Both parties at trial called expert witnesses to testify about Kierra's injuries and the cause of those injuries.
Two conflicting views with regard to the cause of Kierra's death arose from the testimony of medical experts.
The State's witnesses generally testified that Kierra sustained a non-accidental trauma to the head on March 3rd
causing a head fracture and hemorrhaging around the brain. Defense witnesses testified that pathological
evidence of macrophages (indicating healing from an earlier injury) suggested that Kierra sustained an injury
at least a few days before March 3rd. Reports from the Mayo Clinic and the Armed Forces Institute of Pathology
(AFIP) supported this testimony. The defense experts testified that the initial injury may have spontaneously
bled on March 3rd or may have been re-aggravated.
Dr. Laurence Satkowiak, a pediatrician, treated Kierra in the UMC emergency room upon her arrival on
March 3rd. He testified at trial that he initially did not see any bruising or swelling on Kierra's head. His initial
diagnosis was that Kierra had suffered from a neurological devastation. Dr. Satkowiak testified that a child
injured like Kierra would at first be very fussyscreaming or cryingand then quickly start to lose
consciousness, becoming more lethargic. A CAT scan showed that the back of Kierra's skull was fractured, and a
large collection of blood within the brain. Based upon the CAT scan information, Dr. Satkowiak concluded that
Kierra had suffered a non-accidental injury within the last three to six hours. The doctor testified that Kierra's
high blood sugar level supported this diagnosis. Eventually, Dr. Satkowiak turned over Kierra's care to Dr.
Meena Vohra.
Dr. Vohra, a pediatric intensive care specialist, testified about Kierra's condition while she was at UMC.
After viewing the CAT scan, Dr. Vohra testified that she concluded that Kierra's injuries were non-accidental
and probably occurred on March 3rd. Other than the skull fracture, Dr. Vohra did not see any other signs of
injury or abuse.
As the swelling in Kierra's skull worsened on March 3rd, doctors at UMC determined that surgery was
necessary. Dr. John Anson, a neurosurgeon, operated on Kierra. He testified that Kierra's injuries probably
occurred within the four hours prior to Kierra's hospitalization. During surgery there was cerebellar tissue
coming up through the skull fracture. Dr. Anson removed a sample of brain matter and blood. This sample was
subsequently sent to the Mayo Clinic and AFIP for analysis.
sent to the Mayo Clinic and AFIP for analysis. Dr. Anson saw no evidence of a previous injury.
Ultimately, the surgery was unsuccessful and Kierra was pronounced dead on March 5, 1997. Dr. Sheldon
Green performed an autopsy of Kierra on March 6th. Dr. Green found no external signs of injury, however,
internally Dr. Green found a skull fracture just left of center on the back of Kierra's skull. The fracture showed a
line going up and down and one towards the left ear. Dr. Green did not discover any evidence of healing and
testified that the injury was caused by blunt force trauma. If the injury was caused by a fall, Dr. Green testified
that it would have to be from a second story or about ten feet onto concrete.
Other doctors reviewed Kierra's medical file and/or the sample taken from Kierra during surgery. These
reviews resulted in conflicting opinions among medical experts concerning the sample taken from Kierra during
surgery. The Mayo Clinic reported that the slides taken from the sample showed reactive macrophages and not
tumor cells (as it was first diagnosed). AFIP reported that the slides showed reactive inflammatory infiltrate
consistent with organizing hematoma. Both reports suggested that an injury occurred before March 3rd.
Dr. Jeffrey Johnson of Sunrise Hospital in Las Vegas testified that he reviewed the CAT scans and films of
Kierra Harrison three weeks before trial. He stated that the injury was acute, but that he could not be certain
about the time of the injury except that it probably occurred forty-eight hours or less before Kierra was brought
to UMC.
Dr. David Chadwick of the Child Protection Center at the Children's Hospital in San Diego also reviewed
Kierra's file. He testified that the injury was non-accidental. He stated that although there are exceptions, for a
child to incur a similar injury, a fall of over ten feet was necessary. Dr. Chadwick testified that he thought Kierra
must have been slammed backwards into something to cause the fracture. He did not believe that the injury
could have taken place more than twenty-four hours before Kierra arrived at UMC, but that it must have
occurred at some time on March 3rd.
Dr. Lucy Rorke from Children's Hospital in Philadelphia testified that Kierra's injuries were acute and
consistent with non-accidental trauma. The autopsy revealed retinal hemorrhages, which Dr. Rorke believed to
be caused by blunt trauma to the head. Dr. Rorke testified that the sample of cerebellar tissue and blood taken by
Dr. Anson did not reveal macrophages but only degenerated internal granular cells. Thus, Dr. Rorke testified
that Kierra's injuries probably occurred on March 3rd. Dr. Rorke stated that if the sample tissue contained
macrophages, the injury could not have occurred on March 3rd.
Dr. Mary Case, a medical examiner for St. Louis, Missouri, testified that Kierra's injuries were acute and
consistent with non-accidental trauma. She also testified that the sample taken by Dr. Anson was of cerebellum
material and blood. Like Dr. Rorke, Dr. Case testified that the sample did not include macrophages and that
Kierra's injury probably took place on March 3rd. Dr. Case testified that macrophages do not develop for two or
three days. Thus, if they were present, Kierra's injury could not have occurred on March 3rd. Dr. Case further
testified that Kierra's injury was probably caused by acceleration and then deceleration of the brainbasically
that her head was impacted with a blunt object. Dr. Case testified that these injuries are associated with retinal
hemorrhages, but that falls do not usually cause retinal hemorrhages.
Dr. Marietta Nelson, a pediatric ophthalmologist, who reviewed only the autopsy reports, testified that the
retinal hemorrhages were a classic sign of shaken baby syndrome. Dr. Nelson testified that the injury was of a
non-accidental nature with hemorrhages that must have appeared quickly after the injury.
Dr. Craig Voss, a pathologist at UMC, is the doctor who sent Kierra's samples to the Mayo Clinic and then to
AFIP for second opinions. At first, Dr. Voss believed the samples showed an oligodendroglioma or brain tumor.
After reading the reports from the Mayo Clinic and AFIP, Dr. Voss changed his opinion and adopted the
findings of the Mayo Clinic and AFIP, that Kierra sustained an injury more than a few days before she arrived at
the trauma center.
Dr. Barbara Wolf, an expert in forensic pathology, testified that the sample cells prepared by Dr. Voss,
which were sent to the Mayo Clinic and AFIP, exhibited macrophages. Dr. Wolf explained that the number of
macrophages present in the sample would take a minimum of forty-eight hours to develop. The specialized
staining of the slide sample by the Mayo Clinic and AFIP was negative for internal granular tissue. Dr. Wolf
testified that after the initial injury, Kierra's injury could re-bleed spontaneously or with minor trauma. Finally,
Dr. Wolf stated that the initial trauma would not necessarily have rendered Kierra immediately unconscious.
Dr. Robert Cantu, Director of Pediatric Neurosurgery at Boston City Hospital, testified that the degree of the
injury shown in the first CAT scan was more extensive than he thought would be evident from an injury
occurring just a few hours previously. Dr. Cantu testified that in his opinion if the injury was as recent as March
3rd, there would have been external evidence of the injury on Kierra's skull. Thus, one of the possibilities, Dr.
Cantu stated, was that Kierra sustained a skull fracture days earlier and the scalp healed.
scalp healed. Dr. Cantu testified that the blood clot removed from Kierra's head, which was initially described as
a brain tumor, suggested that reactive changes were ongoing for a period of days. Dr. Cantu also testified that
he saw skull fractures in children where the falls were not from a great height. Dr. Cantu testified that there were
inconsistencies in the medical evidence that would make it difficult for anybody to be absolutely sure that all of
Kierra's injuries occurred on March 3rd.
DISCUSSION
The State charged Wegner with first degree murder under NRS 200.030(1). At the time of the injury and
trial, subsection (a) of that statute stated that murder in the first degree is murder which is [p]erpetrated by
means of poison, lying in wait, torture or child abuse, or by any other kind of willful, deliberate and
premeditated killing. NRS 200.030(6)(a) defines child abuse as physical injury of a nonaccidental nature to a
child under the age of 18 years.
Jury instruction on malice aforethought
Wegner contends that the jury instructions in this case created an unconstitutional mandatory presumption
of malice aforethought, which incorrectly relieved the State of its burden to prove every element of the crime
charged.
[Headnote 1]
Jury instruction number 8 stated:
There are certain classes of murder which carry with them conclusive evidence of malice
aforethought. One of these classes of murder is murder committed by means of child abuse. Therefore, a
killing which is committed by child abuse is deemed to be murder of the first degree whether the killing
was intentional or unintentional.
This instruction is erroneous. See Collman v. State, 116 Nev. 687, 7 P.3d 426 (2000).
[Headnotes 2, 3]
We now turn to the question of whether giving the erroneous jury instruction is harmless error. Erroneous
jury instructions are reviewable according to a harmless-error analysis. Id. at 722-23, 7 P.3d at 447 (citing Neder
v. United States, 527 U.S. 1, 13-15 (1999)). An error is harmless when it is clear beyond a reasonable doubt
that a rational jury would have found the defendant guilty absent the error. Neder, 527 U.S. at 18. Moreover,
Neder concluded that jury instruction errors are subject to a harmless error analysis if they do not involve the
type of jury instruction error which "vitiates all the jury's findings"
error which vitiates all the jury's findings and produces consequences that are necessarily unquantifiable and
indeterminate. Id. at 10-11 (citing Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993)). Where a defendant has
contested the omitted element and there is sufficient evidence to support a contrary finding, the error is not
harmless. Id. at 19.
[Headnote 4]
In Collman, the jury instruction error was determined to be harmless beyond a reasonable doubt. The same
cannot be said for this case. In both cases other instructions informed the jury that malice aforethought was a
necessary element of the crime of first degree murder. Other factors distinguish this case from Collman,
however, and prevent a conclusion that the error was harmless beyond a reasonable doubt.
Most notably, the Collman jury also found that Collman tortured the victim, while such a finding is neither
present nor supported by any evidence in this case. In Collman, this court determined that the jury's unanimous
finding of torture beyond a reasonable doubt showed that the jury also found implied malice. Id. at 724, 7 P.3d
at 450. There was no such finding in this case.
Furthermore, this case involves only one instance of alleged child abuse. In Collman, there was evidence of
repeated child abuse. The Collman opinion warns that a malice instruction is necessary to avoid the
circumstance where a single abusive impulsive act by an otherwise decent caretaker would lead to a first degree
murder conviction.
This case also lacks overwhelming evidence of guilt. The case against Wegner relies almost exclusively on
the medical evidence. The various medical experts provided conflicting testimony. Some of the medical
testimony suggested that the victim may have already been injured before being placed in Wegner's care. The
jury may have concluded that Wegner committed child abuse, aggravating a previous injury without malice
aforethought.
It is not clear beyond a reasonable doubt that the jury would have found Wegner guilty of first degree murder
absent the erroneous jury instruction. This court cannot conclude that the error was harmless and therefore
Wegner's conviction must be reversed.
The involuntary manslaughter instruction
[Headnotes 5, 6]
Wegner argues that it was error for the district court to deny her request for an involuntary manslaughter
instruction. A defendant is entitled to a lesser-included offense instruction when the theory of the defense is
consistent with a conviction for the lesser offense. See Walker v. State, 110 Nev. 571, 575, 876 P.2d 646, 649
(1994). Furthermore, in Williams v. State, 99 Nev. 530, 531, 665 P.2d 260, 261 {19S3),
665 P.2d 260, 261 (1983), we held that [i]f a defense theory of the case is supported by some evidence which,
if believed, would support a corresponding jury verdict, failure to instruct on that theory totally removes it from
the jury's consideration and constitutes reversible error. In Graham v. State, 116 Nev. 23, 29, 992 P.2d 255,
258 (2000), we held that a district court need not instruct a jury on deliberation, premeditation, or second degree
murder when first degree murder is charged pursuant to one of the specifically enumerated categories of NRS
200.030(1). However, we noted in Graham, in obiter dictum, that it would be error to refuse a jury instruction
on involuntary manslaughter where proofs are consistent with such a theory of criminal culpability.
Here, evidence provided at trial revealed that Kierra's death may have occurred from circumstances
supporting an involuntary manslaughter conviction. Defense medical experts testified that macrophages present
in a sample taken from the area near Kierra's skull fracture suggest that the injury occurred days before March
3rd and that Kierra's injury may have been aggravated on March 3rd. According to the evidence, this
aggravation could have occurred during a fall, or by some other mechanism besides child abuse. In such a
circumstance, Kierra's death would not have been a product of malice aforethought but possibly a result of
neglect or endangerment. Because there is some evidence to support an instruction on involuntary manslaughter,
the district court's removal of the theory from the jury's consideration constitutes error.
Wegner also cited numerous instances of prosecutorial misconduct, including arguing facts not supported by
the evidence and improper vouching for the strength of the State's case. In view of the disposition in this case,
we do not discuss them, but we assume such arguments will not be made in any retrial.
CONCLUSION
The improper jury instruction on malice aforethought and the omission of the involuntary manslaughter jury
instruction mandate reversal of Wegner's conviction. Where the issue of guilt must be determined by an
evaluation of directly contradictory expert testimony, errors such as those discussed above deprive Wegner of
her right to due process. Thus, we remand this case for a new trial.
Maupin and Becker JJ., concur.
____________
116 Nev. 1158, 1158 (2000) Mark Properties v. National Title Co.
MARK PROPERTIES, INC., a Nevada Corporation, Appellant, v. NATIONAL TITLE CO., a Nevada
Corporation; and LAWYERS' TITLE OF NEVADA, INC., a Nevada Corporation, Respondents.
No. 32954
December 14, 2000 14 P.3d 507
Appeal from two district court orders granting summary judgment of several disputes concerning real
property. Eighth Judicial District Court, Clark County; Nancy A. Becker, Judge.
Purchaser brought negligence and breach of fiduciary duty action against escrow agents, based on the agents'
alleged failure to disclose fraudulent circumstances surrounding double escrow real estate transactions. The
district court entered summary judgment in favor of the agents, and purchaser appealed. The supreme court,
Rose, C. J., held that: (1) escrow agent has a limited duty to disclose facts concerning actual fraud of which the
agent is actually aware, (2) genuine issue of material fact as to whether agent breached duty to disclose to
purchaser fraudulent circumstances surrounding transaction precluded summary judgment, and (3) agent did not
have duty to disclose fraudulent circumstances surrounding transaction to alleged principal who was not a party
to the escrow agreement.
Rehearing granted; opinion withdrawn; affirmed in part, reversed in part and remanded. 117 Nev.
----
, 34 P.3d 587 (2001).
Hutchison & Steffen and Michael K. Wall, Las Vegas, for Appellant.
David Goldwater, Las Vegas, for Respondent National Title Company.
Hale Lane Peek Dennison Howard & Anderson and Robert C. Vohl and James M. Walsh, Reno, for
Respondent Lawyers' Title of Nevada, Inc.
1. Deposits and Escrows.
Escrow agent has a limited duty to disclose facts concerning actual fraud of which the agent is actually aware.
Escrow agent has no duty to investigate circumstances surrounding a particular sale in order to discover fraud.
Generally, the escrow instructions control the parties' rights and define the escrow agent's duties.
4. Judgment.
Genuine issue of material fact as to whether escrow agent breached her duty to disclose to purchaser fraudulent
circumstances surrounding "double escrow" real estate transaction precluded summary judgment in
purchaser's action against agent for negligence and breach of fiduciary duty.
her duty to disclose to purchaser fraudulent circumstances surrounding double escrow real estate transaction precluded summary
judgment in purchaser's action against agent for negligence and breach of fiduciary duty.
Escrow agent did not have duty to disclose fraudulent circumstances surrounding double escrow real estate transaction to alleged
principal who was not a party to the escrow agreement.
Escrow agent owes a duty to disclose known fraud only to parties to the escrow transaction.
Before Rose, C. J., Young and Maupin, JJ.
OPINION
By the Court, Rose, C. J.:
SUMMARY
This case concerns the scope of an escrow agent's duty in a real property transaction involving a double
escrow. Specifically, we are presented with the issue of whether an escrow agent has a duty beyond that set
forth in the escrow instructions to apprise a party to the escrow, and an alleged principal who is not a party to
the escrow, of suspicious facts surrounding a double escrow transaction.
After a pretrial hearing, the district court granted summary judgment in this negligence and breach of
fiduciary duty action, finding in part that an escrow agent had no duty to disclose such facts as a matter of
law. Appellant, who was allegedly defrauded in several real property transactions, filed this timely appeal
contending that summary judgment was improper.
FACTS
In early 1995, Mark Snop and Mark Raiter, real estate investors, were introduced to Sam Ventura, an
individual described as a successful real estate developer in Las Vegas, Nevada. Snop and Raiter later
telephoned Ventura concerning real estate development in the Las Vegas market. After this initial telephone
conversation, Ventura sent Snop and Raiter a letter soliciting their investment. Ventura also provided Snop
and Raiter with a 1994 appraisal of a forty-acre parcel located in North Las Vegas that was available for
acquisition and development.
Thereafter, Snop and Raiter informed Ventura that they would be willing to consider a joint venture in
which Snop, Raiter, and Ventura would each contribute cash to develop the forty-acre parcel. Ventura, his
associate Michael Bash, Snop, and Raiter agreed that Snop and Raiter would form a corporation,
Mark Properties, Inc., that would provide sixty percent of the cash required for the
forty-acre parcel, and Ventura and Bash, through Terra Vegas Corporation, an entity they
controlled, would provide the other forty percent.
that Snop and Raiter would form a corporation, Mark Properties, Inc., that would provide sixty percent of the
cash required for the forty-acre parcel, and Ventura and Bash, through Terra Vegas Corporation, an entity they
controlled, would provide the other forty percent. It was agreed further that despite the fact that Terra Vegas
would only contribute forty percent of the down payment, Terra Vegas would receive a full fifty percent
ownership interest in the parcel in return for locating the property and representing the partnership in Las Vegas.
In June 1995, Terra Vegas sent Mark Properties a proposed joint venture agreement, escrow instructions, and
an installment note for the forty-acre parcel. Thereafter, Mark Properties and Terra Vegas executed the joint
venture agreement, which essentially gave Mark Properties and Terra Vegas each a fifty-percent ownership
share in Ann-Allen, LLC, a limited liability company that took title to the forty-acre parcel.
The purchase price of the parcel was $2,400,000.00, with the parties providing $1,475,000.00 in cash and a
note from Ann-Allen for the remaining $925,000.00. In order to close escrow, Mark Properties was to deposit
$885,000.00 in cash and Terra Vegas was to deposit $590,000.00. Mark Properties gave its cash deposit to the
escrow handler, National Title Company.
On the day escrow was to close, however, Snop and Raiter allegedly discovered that the seller of the
forty-acre parcel was not an unrelated third party, as represented by Ventura and Bash, but instead was Rowe
Land, a corporation controlled by Bash, Ventura's associate. When Snop and Raiter confronted Ventura and
Bash about Rowe Land being the seller, Ventura explained that Rowe Land had purchased the parcel from the
original seller merely to facilitate its acquisition by Ann-Allen, and that Rowe Land had purchased the land for
the same price as Ann-Allen was paying. In reliance on this information, Mark Properties concluded the
transaction by tendering its cash contribution of $885,000.00 toward the $2,400,000.00 purchase price.
At her deposition, Nancy Wilder, a National Title escrow agent, testified that, at the escrow closing, she had
told Snop, Raiter, and their counsel that the land was being sold through a double escrow and that there was a
price difference between the two escrows that would pour over into Rowe Land's first escrow with Old Republic
Title.
Despite Wilder's affidavit, Mark Properties insisted in its complaint that it never knew that Bash, a fiduciary
of Ann-Allen, was profiting from the sale of the land to Ann-Allen. Rather, Mark Properties alleged that by
establishing a double escrow, Rowe Land would purchase the parcel for a lower price, and then use the down
payment tendered by Mark Properties for the Ann-Allen sale to satisfy Rowe Land's down payment
obligation in the first sale.
sale to satisfy Rowe Land's down payment obligation in the first sale. As a result of this double escrow, Mark
Properties alleged that Terra Vegas fraudulently profited and that Bash thereby violated his fiduciary duty as
manager of Ann-Allen.
Mark Properties further contends that National Title breached its fiduciary duty to Mark Properties by failing
to apprise it that Bash was profiting from the double escrow scheme. Before Snop and Raiter discovered this
alleged fraud, the parties entered into several other disputed real property transactions.
First, on September 27, 1995, Ann-Allen bought a twenty-acre parcel for $700,000.00, which was attached to
the forty-acre parcel that Ann-Allen had previously purchased. An escrow account was opened at National Title.
This transaction required a down payment of $400,000.00$240,000.00 in cash from Mark Properties and
$160,000.00 in cash from Terra Vegas. As in the aforementioned land transaction, Mark Properties and Terra
Vegas each had a fifty-percent ownership share in the twenty-acre parcel, and title was held by Ann-Allen. Also,
as with the previous transaction, Ventura and Bash had arranged a double escrow, as Rowe Land had
contemporaneously entered into an escrow at Old Republic Title to purchase the property for a lower price.
Further, consistent with the earlier transaction, Snop and Raiter contend that they were unaware that Rowe Land
had purchased this land for a lower price, as they were told by Bash that Rowe Land only purchased the land to
facilitate the sale to Ann-Allen.
Next, in early 1996, Mark Properties and Bash agreed to form a joint venture called Moscow Strip
Development Corporation for the purpose of buying the Sunbird Inn Motel. Bash told Mark Properties that the
sale price of the Sunbird Inn was $4,000,000.00 and that a deposit of $75,000.00 was required to open the
escrow, of which Mark Properties was to contribute $50,000.00 and of which Bash was to contribute
$25,000.00.
As with the two aforementioned transactions, Bash's company, Rowe Land, had contemporaneously entered
into a transaction to purchase the Sunbird Inn for a lower price from a third party named Chapman.
Sandra Bianco of Lawyers' Title was the escrow agent handling the Rowe Land/Chapman transaction.
According to Bianco's deposition testimony, Rowe Land deposited $50,0000.00 into escrow. The Rowe
Land/Chapman/Sunbird Inn transaction fell through, however, because Bash failed to obtain the proper licenses.
Thereafter, Mark Properties discovered that Bash was profiting from the double escrows.
Prior to Bianco's refund of the Sunbird Inn deposit, Raiter met with Bianco. Raiter told Bianco that the true
principal to the Sunbird Inn transaction was Mark Properties, and requested that Bianco hold the money
on deposit pending a court action for fraud.
Bianco hold the money on deposit pending a court action for fraud. Despite this request, Bianco refunded
$38,000.00 of these funds to Rowe Land and $12,000.00 of these funds to Chapman.
Thereafter, Mark Properties filed a complaint against Lawyers' Title and National Title alleging negligence
and breach of fiduciary duty. In response to Mark Properties' complaint, National Title filed a motion for
summary judgment arguing that it had no duty to disclose or investigate fraud as a matter of law. Lawyers' Title
also filed a motion for summary judgment, arguing that it owed no duty to Mark Properties with respect to the
Rowe Land/Chapman escrow because Mark Properties was not a party to the escrow. The district court granted
both motions for summary judgment, ruling that the escrow companies owed no duty to Mark Properties as a
matter of law. Thereafter, Mark Properties filed this timely notice of appeal.
DISCUSSION
Summary judgment is appropriate in matters where no genuine issues of material fact or law exist. See
Wiltsie v. Baby Grand Corp., 105 Nev. 291, 292, 774 P.2d 432, 433 (1989). In determining whether summary
judgment is warranted, the nonmoving party is entitled to have evidence viewed and all reasonable inferences
read in a light most favorable to the nonmoving party. See id.; Ferreira v. P.C.H. Inc., 105 Nev. 305, 306, 774
P.2d 1041, 1042 (1989).
In the instant matter, Mark Properties contends that the district court erred in granting summary judgment in
favor of National Title and Lawyers' Title. Specifically, Mark Properties contends that the district court erred in
concluding that neither National Title nor Lawyers' Title had a legal duty to disclose circumstances of impending
fraud of which it was aware.
[Headnotes 1, 2]
We agree with Mark Properties that an escrow agent has a limited duty to disclose facts concerning actual
fraud of which the agent is actually aware. Although we conclude that the escrow agent has such a duty, we hold
that an escrow agent has no duty to investigate circumstances surrounding a particular sale in order to discover
fraud.
[Headnote 3]
Generally, the escrow instructions control the parties' rights and define the escrow agent's duties. See
Broussard v. Hill, 100 Nev. 325, 682 P.2d 1376 (1984). Other jurisdictions have, however, recognized an
exception to this general rule, holding that an escrow agent has a duty to disclose known fraud to the parties with
whom it has an escrow relationship. See Burkons v. Ticor Title Ins. Co. of California, S13 P.2d 710,
716-1S {Ariz. 1991);
Title Ins. Co. of California, 813 P.2d 710, 716-18 (Ariz. 1991); American State Bank v. Adkins, 458 N.W.2d
807, 810 (S.D. 1990). The Burkons court explained the rationale for implying a duty to disclose:
[An escrow agent may not] close its eyes in the face of known facts and console itself with the thought
that no one has yet confessed fraud. Although not required to investigate, when the agent is aware of facts
and circumstances that a reasonable escrow agent would perceive as evidence of fraud, then there is a
duty to disclose.
Burkons, 813 P.2d at 718. The Burkons rationale persuades us. We cannot condone an escrow agent's silence
when the agent is aware of facts indicating that fraud is being perpetrated on a party with whom the agent has an
escrow relationship.
1

[Headnote 4]
Having concluded that an escrow agent has a limited duty to disclose, we must reverse the district court's
grant of summary judgment on Mark Properties' actions against National Title. There is a triable, albeit highly
contested, issue of material fact concerning whether Wilder breached her duty to disclose to Mark Properties
fraudulent circumstances of which she was aware. Wilder insists that she informed Mark Properties that the land
was being sold through a double escrow and that the Rowe Land entity was profiting from the first escrow.
Mark Properties, however, denies receiving any such information. We leave the resolution of this factual dispute
to the trier of fact.
[Headnote 5]
With respect to Mark Properties' causes of action against Lawyers' Title, we affirm the district court's order
granting summary judgment in favor of Lawyers' Title.
__________

1
In so concluding, we are aware that there are other jurisdictions, such as California, which hold that an
escrow agent has no duty beyond that set forth in the escrow instructions. See Lee v. Title Ins. Co., 70 Cal. Rptr.
378 (Ct. App. 1968); Blackburn v. McCoy, 37 P.2d 153 (Cal. Ct. App. 1934). California refuses to extend an
escrow agent's duty beyond the escrow instructions based on its conclusion that an escrow agent has only a
limited agency relationship with the parties to the escrow that is set forth in the escrow instructions. See Lee, 70
Cal. Rptr. at 380; see also Blackburn, 37 P.2d at 155 (holding that escrow relationship cannot be one of general
agency because the parties to a real property transaction have conflicting interests).
The rationale behind California's refusal to imply a duty to disclose is protective in nature, as California
concludes that imposing a duty to disclose would subject the escrow holder to a high risk of litigation that would
effectively discourage a reasonable person from acting as an escrow holder. See Lee, 70 Cal. Rptr. at 380. We
disagree.
[Headnote 6]
An escrow agent owes a duty to disclose known fraud only to parties to the escrow transaction. See Berry v.
McLeod, 604 P.2d 610, 611 (Ariz. 1979). In the case at hand, it is undisputed that Mark Properties was not a
party to the escrow agreement. Although Mark Properties asks this court to conclude that Lawyers' Title should
have held the Rowe Land/Chapman funds pending a court resolution of Mark Properties' action for fraud
because it was a principal to this transaction, there is neither compelling rationale nor any authority for such a
conclusion. In fact, if Lawyers' Title were to refuse to release funds upon a third party's request and in violation
of the escrow instructions, it would likely be liable to the parties to the escrow for breach of fiduciary duty and
conversion. See Broussard v. Hill, 100 Nev. 325, 329, 682 P.2d 1376, 1378 (1984) (The escrow agent must
strictly comply with the terms of the escrow agreement and may not use the proceeds in any manner that is not
authorized by contract or deposit.); see also Kula v. Karat, Inc., 91 Nev. 100, 103-04, 531 P.2d 1353, 1355
(1975) (There is authority for the broad rule that as long as the [bailor-bailee] relationship exists a bailee may
not, in any case, dispute or deny the title of the bailor, or his ultimate right to possession . . . by asserting title in
a third person.).
Accordingly, we conclude that Lawyers' Title owed no duty to Mark Properties because Mark Properties was
never a party to a Lawyers' Title's escrow. The district court's order granting summary judgment to Lawyers'
Title is affirmed.
CONCLUSION
We conclude that the district court erred in granting National Title's motion for summary judgment for
breach of fiduciary duty and negligence because there was a triable issue of material fact concerning whether
National Title breached a duty owed to Mark Properties to disclose fraud or suspicious circumstances of which
it was aware. We also conclude that, as a matter of law, Lawyers' Title owed Mark Properties no duty because
Mark Properties was not a party to the Lawyers' Title escrow transaction, and thus the district court did not err
in granting Lawyers' Title's motion for summary judgment. Accordingly, we affirm the district court's order
granting summary judgment to Lawyers' Title, reverse the district court's order granting summary judgment to
National Title, and remand for further proceedings consistent with this opinion.
Young and Maupin, JJ., concur.
____________
116 Nev. 1165, 1165 (2000) Salas v. Allstate Rent-A-Car, Inc.
PEDRO SALAS and FLORENCE SALAS, Individually and as Husband and Wife, Appellants, v. ALLSTATE
RENTA CAR, INC., a Nevada Corporation, Respondent.
No. 32963
December 14, 2000 14 P.3d 511
Appeal from an order granting respondent's motion for summary judgment in a personal injury action. Eighth
Judicial District Court, Clark County; Nancy A. Becker, Judge.
Motorists injured in rear-end collision with rental car sued rental car agency after the rental car driver's
personal automobile insurer had paid the financial responsibility minimum coverage to the injured motorists.
The district court granted summary judgment for rental car agency. Motorists appealed. The supreme court held
that: (1) rental car agency, a short-term lessor of car, may be required to pay damages to injured motorists if
rental car driver's personal insurance does not fully compensate the motorist; and (2) genuine issue of fact exists
as to actual amount of motorists' damages.
Albert D. Massi, Ltd., Las Vegas, for Appellants.
Kerr & Associates, Las Vegas, for Respondent.
In determining whether summary judgment is appropriate, supreme court views the pleadings and evidence in a light most
favorable to the non-moving party.
The construction of a statute is a question of law and thus supreme court does not defer to the district court's
interpretation.
3. Statutes.
Supreme court's objective in construing statutes is to give effect to the legislature's intent.
4. Statutes.
In construing statute so as to give effect to the legislature's intent, supreme court first looks to the plain language of the
statute.
5. Statutes.
When the statutory language is ambiguous or otherwise does not speak to the issue before us, supreme court will construe
it according to that which reason and public policy would indicate the legislature intended.
6. Statutes.
Legislative intent may be ascertained by reference to the entire statutory scheme.
7. Automobiles.
Short-term lessor of motor vehicles may be required to pay damages to persons injured by lessees of its motor vehicles
when a lessee's personal insurance has paid the Nevada financial responsibility minimum coverage to the injured parties
and the lessee's personal insurance does not fully compensate the injured parties.
coverage to the injured parties and the lessee's personal insurance does not fully compensate the injured parties. NRS 482.305(1).
8. Judgment.
Genuine issue of fact as to the actual amount of damages injured motorists incurred in rear-end collision with rental car precluded
summary judgment for rental car agency in motorists' personal injury action brought after the rental car driver's personal automobile
insurer had paid the financial responsibility minimum coverage to the injured motorists. NRS 482.305(1).
Before Rose, C. J., Young and Maupin, JJ.
OPINION
Per Curiam:
This case presents the issue of whether a short-term lessor of motor vehicles may be required to pay
damages to persons injured by lessees of its motor vehicles when a lessee's personal insurance has paid the
Nevada financial responsibility minimum coverage to the injured parties. We conclude that it may be so
required.
FACTS
Stephen J. Romeo, a resident of Pahrump, Nevada, leased a car from Allstate Rent-A-Car, Inc. According
to an addendum attached to Romeo's contract with Allstate, Romeo declined all supplemental coverage. The
contract provided a warning that read, [y]our own insurance policy may cover all or a portion of your
liability while renting this vehicle. You should consult your insurance agent to determine the scope of your
coverage. At the time that Romeo leased the vehicle, he was personally covered by an insurance policy with
California State Automobile Association (CSAA) with third-party liability limits of $15,000.00 per person
injured or killed in a single accident, $30,000.00 total per accident for bodily injury/death, and $25,000.00
per accident for property damage.
On July 12, 1996, Romeo was operating his leased car in an allegedly negligent manner and rear-ended a
car driven by Pedro Salas. Pedro's wife, Florence Salas, and Thomas and Ester Rivieras were also in the car.
The four sustained injuries for which they received medical treatment.
On June 9, 1997, the Salases filed a personal injury action against Romeo and Allstate. Thereafter, the
Salases entered into agreements with Romeo and CSAA under which CSAA, pursuant to Romeo's insurance
policy, agreed to pay Pedro $6,000.00 and Florence $11,000.00 in exchange for a partial covenant not to
execute against Romeo. The covenant stated in part that the Salases:
expressly reserve all rights of action, claims and demand against all other persons and entities above,
including any and all other coverages . . . and/or personal coverages through any entity, including, but not
limited to, ALLSTATE RENT A CAR, its agents, subsidiaries or any other auto rental company or
entity, with whom they are associated.
(Emphasis in original.)
CSAA also settled with the Rivieras in the amount of $13,000.00, bringing CSAA's total payment for the
accident to $30,000.00, Romeo's policy limit and the statutorily required minimum for injury to two or more
persons in one accident. See NRS 485.3091.
After settling with CSAA, the Salases filed an action against Allstate alleging that the injuries sustained were
greater than the $30,000.00 CSAA had paid pursuant to the covenant not to execute. In response to the Salases'
complaint, Allstate filed a motion for summary judgment arguing primarily that it had no obligation to appellants
because CSAA had paid an amount equal to the minimum liability limits set by NRS 482.305(1) as interpreted
by this court in Alamo Rent-A-Car v. State Farm, 114 Nev. 154, 953 P.2d 1074 (1998).
After a hearing, the district court granted summary judgment for Allstate, stating that:
The reason that [Allstate] is liable for anything is because the statute says you're liable up to the minimum
of fifteen/thirty. So, the issue is did the Legislature intend for them to have to pay in accidents where the
damages allegedly exceed the fifteen/thirty limits provided by the driver's insurance company, or
whatever the applicable policy limits are. Should [Allstate] have to pay above and beyond that, either
another fifteen/thirty or anything above and beyond that? And my answer to that is I don't think that the
statute contemplates that the rental car companies are to pay, except in a circumstance where the driver
does not have insurance. And then the rental car company has to pay the minimum limits.
Thereafter, appellants filed this timely appeal alleging that the district court erred.
DISCUSSION
[Headnote 1]
Summary judgment is appropriate only when no genuine issues of fact exist and the moving party is entitled
to judgment as a matter of law. See Sprague v. Lucky Stores, Inc., 109 Nev. 247, 250, 849 P.2d 320, 322
(1993). In determining whether summary judgment is appropriate, we will view the pleadings and
evidence in a light most favorable to the non-moving party.
judgment is appropriate, we will view the pleadings and evidence in a light most favorable to the non-moving
party. See id.
The Salases contend that the district court erred in concluding that Allstate was absolved of liability when
CSAA tendered the statutory minimum pursuant to the covenant not to execute because their damages allegedly
exceed the $30,000.00 statutory minimum coverage that CSAA paid.
1
Specifically, the Salases argue that the
district court erred in its construction of NRS 482.305(1) and in its interpretation of Alamo.
NRS 482.305(1) provides, in relevant part, that:
The short-term lessor of a motor vehicle who permits the short-term lessee to operate the vehicle upon the
highways, and who has not complied with NRS 482.295 insuring or otherwise covering the short-term
lessee against liability arising out of his negligence in the operation of the rented vehicle in limits of not
less than $15,000 for any one person injured or killed and $30,000 for any number more than one, injured
or killed in any one accident, . . . is jointly and severally liable with the short-term lessee for any damages
caused by the negligence of the latter in operating the vehicle. . . .
[Headnotes 2-6]
The construction of a statute is a question of law and thus we do not defer to the district court's interpretation.
See Maxwell v. SIIS, 109 Nev. 327, 329, 849 P.2d 267, 269 (1993). Our objective in construing statutes is to
give effect to the legislature's intent. See Cleghorn v. Hess, 109 Nev. 544, 548, 853 P.2d 1260, 1262 (1993). In
so doing, we first look to the plain language of the statute. Where the statutory language is ambiguous or
otherwise does not speak to the issue before us, we will construe it according to that which reason and public
policy would indicate the legislature intended. State, Dep't of Mtr. Vehicles v. Lovett, 110 Nev. 473, 477, 874
P.2d 1247, 1249-50 (1994) (quoting State, Dep't Mtr. Vehicles v. Vezeris, 102 Nev. 232, 236, 720 P.2d 1208,
1211 (1986)). In such situations, legislative intent may be ascertained by reference to the entire statutory
scheme. See SIIS v. Bokelman, 113 Nev. 1116, 1123, 946 P.2d 179, 184 (1997).
__________

1
The Salases do not raise the specific argument that is the subject of our analysis. Rather, the Salases contend
that they were only paid $17,000.00 by CSAA to settle their claims, and, therefore, Allstate remains liable for at
least $13,000.00 more to meet the statutory minimum for one accident of $30,000.00. The record, however,
clearly indicates that CSAA has paid a total of $30,000.00 to all passengers: $17,000.00 to the Salases and
$13,000.00 to the Rivieras. In any event, we ground our analysis in the question of statutory construction
presented by the Salases' claim that their damages exceeded the statutory minimum.
NRS 482.305(1) creates a limited safe harbor protecting short-term lessors of motor vehicles that provide
the minimum statutory coverage from being held jointly and severally liable for damages caused by a negligent
lessee. The statute does not, however, expressly address the specific issue presented here. We are, nonetheless,
able to discern the legislature's intent from the broader context of Nevada's financial responsibility law.
[Headnote 7]
NRS 485.185 requires that every owner of a motor vehicle provide insurance in the minimum amounts set
forth therein. Also, in lieu of the owner's policy required by NRS 485.185, the driver may provide an
operator's policy, which essentially insures the driver while operating any motor vehicle, in the same minimum
amounts. See NRS 485.186. Observing the foregoing in light of NRS 482.305(1), we infer that, in instances
where the lessee of an automobile under a short-term lease agreement is covered by an owner's or operator's
policy, the legislature was aware that more than one insurance policy would cover the automobile lesseethe
driver's personal policy pursuant to NRS 485.185 or NRS 485.186 and the lessor's policy provided pursuant to
NRS 482.305(1). We therefore conclude that, by enacting a scheme that contemplates dual coverage, the
legislature intended that both policies provide coverage up to the respective statutory minimums.
Allstate counters that such a construction leads to the absurd result of providing a windfall for accident
victims. We disagree. We first observe that a windfall describes a situation in which the recipient receives
some benefit undeserved or unmerited. This term does not describe the recovery that accident victims may
receive to compensate their actual losses. Furthermore, reason and public policy support our conclusion: the
general spirit of Nevada's financial responsibility law clearly favors protecting accident victims to the extent
possible. See Hartz v. Mitchell, 107 Nev. 893, 896, 822 P.2d 667, 669 (1991) (Nevada has a strong public
policy interest in assuring that individuals who are injured in motor vehicle accidents have a source of
indemnification.).
Allstate cites Alamo for the proposition that, once the statutory minimum is paid by the lessee's personal
insurance, the lessor is absolved of further liability. See Alamo, 114 Nev. at 154, 953 P.2d at 1074. In Alamo, we
held that in cases where the lessee's own insurance policy and the policy provided by the lessor both contain
mutually repugnant other insurance clauses, the driver's personal insurance is the primary insurer up to the
statutory minimum. See id. at 160, 953 P.2d at 1077. Accordingly, we stated that absent a personal policy
covering the driver, the lessor will step in and compensate the victim up to the minimum limits.
its. Id. In Alamo we determined that the lessee's personal insurance is primary and the lessor's insurance is
secondary, but we did not address the specific scenario at hand, wherein the lessee's personal insurance has
been consumed to the statutory minimum and the damages incurred allegedly exceed that amount. Thus, Alamo
does not guide our analysis of the instant matter.
[Headnote 8]
Instead, we conclude that the legislature enacted a statutory scheme providing dual coverage in instances
such as this. Sound public policy dictates that a short-term lessor of motor vehicles may be required to
compensate the victim, at least up to the statutory minimum, in cases where the lessee's personal insurance does
not fully compensate the victim(s).
2
Therefore, in this instance, where the lessee's personal insurance policy has
first been extinguished pursuant to Alamo, Allstate may still be required to compensate the victims up to an
additional $30,000.00, the statutory minimum for one accident pursuant to NRS 482.305(1), depending on the
damages proved.
CONCLUSION
For the foregoing reasons, we conclude that the district court misapplied NRS 482.305(1). Accordingly,
there remain certain issues to be addressed, such as the actual amount of damages the Salases incurred. The
district court's order granting summary judgment is reversed and the case is remanded for further proceedings.
__________

2
We have resolved the issue of whether the short-term lessor of motor vehicles may be required to pay
damages to those injured by a lessee of its vehicles when the injured parties have already been paid the
statutory minimum by the lessee's personal insurance. In future cases such as this, when the lessor refuses to
insure or otherwise cover the lessee in the minimum statutory amounts or pay damages accordingly, the lessor
may be subjecting itself to unlimited joint and several liability with its lessee pursuant to NRS 482.305(1).
____________
116 Nev. 1171, 1171 (2000) Nguyen v. State
TUAN NGOC NGUYEN, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 34555
December 14, 2000 14 P.3d 515
Appeal from a judgment of conviction, pursuant to a guilty plea, of one count of drawing and passing a check
without sufficient funds. Appellant was sentenced to thirty-two months, suspended, and placed on probation for
four years. Eighth Judicial District Court, Clark County; Donald M. Mosley, Judge.
Defendant was convicted in the district court of drawing and passing a check without sufficient funds.
Defendant appealed. The supreme court, Maupin, J., held that: (1) casino markers were checks within meaning
of bad check statute, (2) there was sufficient evidence of defendant's intent to defraud, and (3) defendant was not
selectively prosecuted.
Affirmed.
[Rehearing denied February 23, 2001]
[En banc reconsideration denied April 5, 2001]
William L. McGimsey, Las Vegas, for Appellant.
Lionel Sawyer & Collins and Anthony N. Cabot, Dennis L. Kennedy and David N. Frederick, Las Vegas,
for Amicus Curiae Nevada Resort Association.
1. Criminal Law.
The interpretation of a statute is a question of law, which supreme court reviews de novo.
2. False Pretenses.
Casino markers, gaming credit instruments that were payable to casinos on demand, were checks within meaning of the
bad check statute, which prohibits the drawing or passing of a check or draft to obtain credit extended by any licensed gaming
establishment, drawn on a bank when the person has insufficient money, property, or credit with the drawee of the instrument
to pay it in full upon its presentation. NRS 205.130(1).
3. Statutes.
When the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, the courts are not
permitted to search for its meaning beyond the statute itself.
4. False Pretenses.
Bad check statute applies to instruments that are drawn upon a bank, payable on demand, signed by the payor, and which
instruct the bank to pay a certain amount to the payee. NRS 205.130(1).
5. False Pretenses.
Evidence that defendant failed to pay the full amount due on casino markers within the period provided for by the bad check
statute and that the markers were returned from his bank with the notation Account Closed was sufficient to establish defendant's
intent to defraud so as to sustain his conviction for drawing and passing a check without sufficient funds. NRS 205.130(1).
A denial of equal protection may occur when a facially valid statute is applied in an arbitrary or discriminatory manner. U.S.
Const. amend. 14.
State did not selectively prosecute defendant for drawing and passing a check without sufficient funds, based on his failure to pay
amount due on casino marker and return of markers from his bank with notation Account Closed, and thus did not violate his equal
protection rights. There was no evidence of selective prosecution. U.S. Const. amend. 14; NRS 205.130(1).
Before Young, Maupin and Becker, JJ.
OPINION
Appellant Tuan Ngoc Nguyen was arrested and charged with passing bad checks at the following Las
Vegas gaming resorts: Harrah's Las Vegas Hotel and Casino, the Luxor Hotel and Casino, the Excalibur
Hotel Casino, and the Flamingo Hilton Hotel and Casino. Nguyen was thereafter convicted on one count
of drawing and passing a check without sufficient funds in violation of NRS 205.130(1). We affirm the
judgment entered thereon by the district court.
FACTS
Tuan Ngoc Nguyen is a resident of the state of Texas. In December of 1995, he secured gambling credit
through the issuance of markers from several licensed Las Vegas gaming establishments. Each followed
standard industry procedures with respect to the extension of credit to Nguyen. These procedures are
described immediately below.
In general, patrons apply for casino credit by completing a standard form setting forth the name of the
applicant, his or her address, the name of the applicant's bank, and the bank account number. Casino
personnel approve the applications pending verification of the basic bank information, including the average
balance of the applicant's account.
An applicant may receive all or a portion of the credited amount at a gaming table in the form of a
marker. The marker is an instrument,
is an instrument, usually dated, bearing the following information: the name of the player; the name, location,
and account number of the player's bank; and the instruction Pay to the Order of the casino for a specific value
in United States dollars. The marker also contains a stipulation whereby the payor represents that the amount
drawn by the marker is on deposit in the referenced financial institution, and that he guarantees payment. The
player and a casino representative sign the marker. The player then exchanges the marker for gaming tokens or
chips, which may be exchanged for currency with the casino cashier.
When a patron has concluded play, he either pays the full amount of the marker he has obtained or leaves the
casino with the marker outstanding. If the marker remains outstanding, casino personnel attempt to notify the
patron and, after a specified period of time, submit the marker to the patron's bank for collection.
1
Should the
bank account contain insufficient funds, the casino will again attempt contact with the patron. If payment is not
forthcoming, the gaming establishment has the option to refer the customer for possible criminal prosecution.
On December 9, 1995, Harrah's Las Vegas issued a marker to Nguyen in the amount of $5,000. On
December 10, 1995, he obtained markers for $5,000 from the Luxor Hotel and Casino and $2,500 from the
Excalibur Hotel Casino.
2
Nguyen signed each marker and departed the state without paying the debt incurred.
Each establishment sent notice to Nguyen that his obligation remained outstanding.
__________

1
A representative of Harrah's described the casino's practice of deferring deposit of the marker:
Q. What is the date on that check?
A. On the marker? 12/9 of 95.
Q. And on the back, does it indicate when that check was deposited
to Harrah's account?
A. January 11th of 96.
Q. That is more than 30 days?
A. Yes it is.
. . . .
Q. [The cashiers] don't deposit [the markers] when they get them?
A. Everybody has a different disposition date, 30 days, 90 days.
Q. What is the disposition date [for Harrah's]?
A. Thirty days.
Q. What does it mean?
A. If a customer has a 30-day disposition date, they have 30 days from the time they sign the marker to
send us a check, and after those 30 days, we usually allow seven days for them to put a check in the mail.
The practice of allowing a customer to pay gaming debts with a second check is a matter of courtesy and
convenience to the customer.

2
Nguyen allegedly also passed a bad check at the Flamingo Hilton Hotel and Casino. There is no indication
in the record that the check at issue in that transaction was a marker.
remained outstanding. Later, each establishment sent its marker to Nguyen's bank, the Texas First National
Bank, for payment. The bank returned all of the markers with the notation, Account Closed. Casino
representatives unsuccessfully sought to personally contact Nguyen. Thereafter, these matters were referred for
prosecution and the Clark County District Attorney charged Nguyen in three criminal complaints with violations
of NRS 205.130. An amended criminal complaint was filed on April 9, 1998, and a preliminary hearing held on
April 14, 1998. Nguyen was held to answer and an information was filed in the district court on April 23, 1998.
3

Nguyen entered into a plea agreement with the State, pursuant to which he pleaded guilty in connection with
the Harrah's Las Vegas marker to one count of drawing and passing a check without sufficient funds in the
drawee bank and with intent to defraud. The plea agreement included a provision reserving Nguyen's right to
appeal two issues: (1) whether NRS 205.130(1) applies to casino markers and (2) whether he was selectively
prosecuted in violation of his right to equal protection under the Federal Constitution. The district court accepted
the guilty plea and entered a judgment of conviction accordingly. This timely appeal followed.
DISCUSSION
The bad check statute
The primary question before us is whether the term check or draft, as used in NRS 205.130(1), the
Nevada criminal statute prohibiting the drawing or passage of bad checks, applies to gaming credit
instruments commonly known as markers.
[Headnote 1]
The interpretation of a statute is a question of law, which we review de novo.
4
County of Clark v.
Upchurch, 114 Nev. 749, 753, 961 P.2d 754, 757 (1998).
[Headnote 2]
The Nevada bad check statute, NRS 205.130(1), prohibits a person from drawing or passing a check or
draft to obtain "[c]redit extended by any licensed gaming establishment,"
__________

3
The information charged twelve counts: four counts of drawing and passing a check without sufficient
funds with intent to defraud; four counts alleging theft by material misrepresentations; and four counts alleging
theft by obtaining property or services knowing the checks would not be paid when presented.

4
In Fleeger v. Bell, 95 F. Supp. 2d 1126 (D. Nev. 2000), the United States District Court for the district of
Nevada was called upon to construe NRS 205.130(1). Our ruling today marks our agreement with the federal
court's interpretation of this provision.
[c]redit extended by any licensed gaming establishment, drawn on a bank when the person has insufficient
money, property or credit with the drawee of the instrument to pay it in full upon its presentation. Although
NRS 205.130(1) does not explicitly define the term check or draft, we construe this undefined term in
accordance with its ordinary and plain meaning. See Attorney General v. Board of Regents, 114 Nev. 388, 392,
956 P.2d 770, 774 (1998) (quoting McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441
(1986)).
A draft is [a] written order by the first party, called the drawer, instructing a second party, called the
drawee (such as a bank), to pay money to a third party, called the payee. Black's Law Dictionary 493 (6th ed.
1990). The Uniform Commercial Code (codified in Nevada at NRS 104.1101 et seq.) defines draft as an
order, a written instruction to pay money signed by the person giving the instruction. U.C.C. 3-103(a)(6);
U.C.C. 3-104(e); NRS 104.3103(1)(f); NRS 104.3104(5). A check is an instrument drawn upon a bank and
payable on demand,
5
signed by the drawer, containing an instruction to pay a certain amount to another party.
See Black's Law Dictionary 493 (6th ed. 1990); U.C.C. 3-104(f)(i); NRS 104.3104(6)(a); see also 12 C.F.R.
210.2(h) (Federal Reserve Board definition of a check as a draft drawn on a bank and payable on demand). An
instrument may be a check even though it is described on its face by another term. U.C.C. 3-104(f); NRS
104.3104(6).
[Headnotes 3, 4]
Where the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, . . .
the courts are not permitted to search for its meaning beyond the statute itself. ' Erwin v. State of Nevada, 111
Nev. 1535, 1538-39, 908 P.2d 1367, 1369 (1995) (quoting Charlie Brown Constr. Co. v. Boulder City, 106 Nev.
497, 503, 797 P.2d 946, 949 (1990) (quoting State v. Jepsen, 46 Nev. 193, 196, 209 P. 501, 502 (1922))). We
believe the language of this statute is abundantly clear and unmistakable. By its terms, NRS 205.130 applies to
instruments that are drawn upon a bank, payable on demand, signed by the payor, and which instruct the bank to
pay a certain amount to the payee.
Given the foregoing analysis, we conclude that the markers at issue in the instant case fall within the purview
of the bad check statute. The markers provided a mechanism for payment of a specific sum of money from the
Texas National Bank to the order of these gaming establishments.
__________

5
A promise or order is payable on demand' if it: (a) States that it is payable on demand or at sight; (b)
Otherwise indicates that it is payable at the will of the holder; or (c) Does not state any time of payment. NRS
104.3108(1); see also U.C.C. 3-108(a).
these gaming establishments. Nguyen signed the instruments, which stated no time or date of paymentthey
were payable on demand, thus subjecting the [drawer] payor to a repayment obligation at the will of the payee.
Fleeger, 95 F. Supp. 2d at 1131. We therefore hold that these markers were checks within the meaning of
NRS 205.130(1).
Nguyen contends that the markers are better characterized as credit instruments outside the scope of NRS
205.130. According to Nguyen, the practice of delaying payment of a marker renders the instrument a loan
document, whereby the signer agrees to pay the debt before an agreed-upon but unwritten disposition date. We
disagree. Whether an obligee chooses to cash a check immediately or at a later date does not alter the character
of the instrument. Further, there is no evidence that Nguyen and the casinos understood the marker to effect a
contract for a loan. See Hillyer v. The Overman Silver Mining Co., 6 Nev. 51 (1870) (holding that parties to a
contract must mutually assent to its terms).
6

[Headnote 5]
We turn now to Nguyen's contention that his conduct did not evidence sufficient criminal intent. The statute
provides that, in order to be convicted for passing bad checks, a person must act with an intent to defraud.
NRS 205.130(1). Also,
[i]n a criminal action for issuing a check or draft against insufficient or no funds with intent to defraud,
that intent and the knowledge that the drawer has insufficient money, property or credit with the drawee
[bank] is presumed to exist if . . . [p]ayment of the instrument is refused by the drawee when it is
presented in the usual course of business, unless within [five] days after receiving notice of this fact from
the drawee or the holder, the drawer pays the holder of the instrument the full amount due plus any
handling charges.
NRS 205.132. We conclude that Nguyen's intent to defraud was circumstantially demonstrated by his failure to
pay the full amount due within the statutory period, and by the return of the instruments from his bank with the
notation Account Closed. Thus, evidence such as that present in this case is sufficient to raise a jury question
on the issue of guilt or innocence under NRS 205.130.
Nguyen alternatively contends that he had no intent to defraud because the markers were post-dated
instruments (meaning that the instruments bore dates later than the date they were issued).
__________

6
We decline to hold, as urged by Nguyen, that the markers in this case were pre-dated checks, that is,
checks held by the casinos pursuant to a contract of future deposit. This argument is essentially identical to
Nguyen's contention that a marker is the equivalent of a post-dated check. See infra at 8. The mere fact that
markers are held for a period of time prior to deposit does not evidence such a contract.
the instruments bore dates later than the date they were issued). He argues that, as a matter of law, post-dating a
check is prima facie evidence that there is no intent to defraud. See State v. Stooksberry, 872 S.W.2d 906 (Tenn.
1994); State v. Papillon, 389 N.W.2d 553 (Neb. 1986); see also U.C.C. 3-113(a); NRS 104.3113(1) (an
instrument payable on demand is not payable before the date of the instrument.)
We disagree. Assuming Nguyen's argument is based upon a correct statement of Nevada law (we have never
addressed the issue), the markers in this case were not post-dated. Rather, they bore the date upon which they
were executed. Nguyen also argues that the agreement by the gaming establishments to hold the markers for a
period of time rendered them the equivalent of postdated checks. However, just as there is no evidence here
that the parties intended the markers to represent a loan instrument, there is no evidence that the parties mutually
understood that the markers were post-dated checks. The face of the documents demonstrates that they were
payable on demand, at the time of issuance.
Nguyen further argues that, under State v. Jarman, 84 Nev. 187, 438 P.2d 250 (1968), he cannot be
prosecuted under NRS 205.130(1). In Jarman, we held that this provision does not apply to checks issued to pay
preexisting debts. The gravamen of the offense, we noted, is the intent to defraud. Id. at 190, 438 P.2d at 252-53.
Payment of a preexisting debt with an instrument backed with insufficient funds does not, in and of itself, confer
any benefit on the maker because the debt remains unaffected. Id.
Nguyen asserts that the agreements to delay collection transformed the markers into instruments
memorializing preexisting debts. Such transactions, he contends, fall outside the scope of NRS 205.130. This
assertion lacks merit. The markers issued in these instances did not compensate these establishments for
preexisting debts. Rather, Nguyen executed the markers to purchase gaming tokens, which he could exchange
for currency. In this manner, Nguyen deprived the casinos of property. Jarman is inapposite, and we reject
Nguyen's contention to the contrary.
Accordingly, we hold that Nguyen was properly convicted under NRS 205.130.
Equal protection
[Headnote 6]
Nguyen next contends that he has been selectively prosecuted in this matter. A denial of equal protection
may occur when a facially valid statute is applied in an arbitrary or discriminatory manner. See City of Las
Vegas v. 1017 S. Main Corp., 110 Nev. 1227, 1235, 885 P.2d 552, 557 (1994) (citing Yick Wo v. Hopkins,
11S U.S. 356, 373-74 {1SS6)).
Hopkins, 118 U.S. 356, 373-74 (1886)). Such a denial violates the Fourteenth Amendment of the Federal
Constitution.
7

[Headnote 7]
Nguyen argues that the State maintains a double standard in prosecuting persons securing agreements to hold
checks for later deposit. According to Nguyen, the State prosecutes such actions under NRS 205.130 when a
casino is a party to the agreement, but not when other classes of businesses agree to delay depositing checks.
We find this contention to be without merit. As noted earlier, the casino markers in this case were not
pre-dated checks or credit instruments, or the equivalent of post-dated checks. The markers were, as we have
concluded, simply checks, payable on demand and facially negotiable at the time of issuance. Nguyen offers no
particularized evidence demonstrating how these alleged offenses were selectively prosecuted. We therefore
hold that the State has not, via the instant prosecution, denied Nguyen equal protection of the law.
CONCLUSION
We hold that Nguyen was properly prosecuted under NRS 205.130. We also hold that Nguyen's contention
that he was deprived of his rights under the Federal Constitution is without merit. Accordingly, we affirm the
district court's judgment of conviction.
Young and Becker, JJ., concur.
____________
116 Nev. 1178, 1178 (2000) State v. Combs
THE STATE OF NEVADA, Appellant, v. JERRY PAUL COMBS, Respondent.
No. 36035
December 14, 2000 14 P.3d 520
Motion to dismiss an appeal from an order of the district court dismissing a criminal charge. Sixth Judicial
District Court, Humboldt County; Jerry V. Sullivan, Judge.
State appealed from order of the district court which dismissed one of charges against defendant for sexual
assault on a child under age of 16 years. Defendant filed motion to dismiss appeal. The supreme court held that:
(1) district court erred in granting defendant's motion to dismiss, rather than giving advisory instruction to
acquit or entering judgment of acquittal if jury found defendant guilty;
__________

7
No State shall . . . deny to any person within its jurisdiction the equal protection of the laws. U.S. Const.
amend. XIV, 1.
116 Nev. 1178, 1179 (2000) State v. Combs
instruction to acquit or entering judgment of acquittal if jury found defendant guilty; but (2) Double Jeopardy
Clause barred retrial of defendant.
Motion granted; appeal dismissed.
Frankie Sue Del Papa, Attorney General, Carson City; David Allison, District Attorney, and Conrad
Hafen, Chief Deputy District Attorney, Humboldt County, for Appellant.
Donald York Evans, Reno, for Respondent.
1. Criminal Law.
Trial court erred in granting defendant's motion to dismiss charge at close of State's case-in-chief, rather than giving jury
an advisory instruction to acquit or entering judgment of acquittal if jury found defendant guilty. NRS 175.381(1), (2).
2. Double Jeopardy.
Double Jeopardy Clause barred retrial of defendant on a charge that the trial court had dismissed at close of State's
case-in-chief in response to defendant's motion to dismiss, though trial court had erred in dismissing charge rather than giving
jury an advisory instruction to acquit or entering judgment of acquittal if jury found defendant guilty. Const. art. 1, 8; U.S.
Const. amend. 5.
3. Double Jeopardy.
A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is
insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a
reversal.
4. Double Jeopardy.
It is a violation of the Double Jeopardy Clause to permit a second trial after an acquittal, however mistaken the acquittal
may have been. Const. art. 1, 8; U.S. Const. amend. 5.
OPINION
Per Curiam:
Respondent Combs has filed a motion to dismiss this appeal, arguing that the appeal is moot because
retrial is barred by the proscription against double jeopardy.
1
Appellant opposes the motion. For the reasons
stated below, we grant respondent's motion and dismiss this appeal.
__________

1
The Double Jeopardy Clause of the United States Constitution provides that no person shall be subject
for the same offense to be twice put in jeopardy of life or limb. U.S. Const. amend. V. This protection
applies to the states through the Fourteenth Amendment and Benton v. Maryland, 395 U.S. 784, 794 (1969),
and has been incorporated into the Nevada Constitution at article 1, section 8.
116 Nev. 1178, 1180 (2000) State v. Combs
Respondent was charged with four counts of sexual assault on a child under the age of 16 years. Specifically,
respondent was charged with sexually assaulting a nine-year-old girl. Although the wording of each of the four
counts was identical, the State's theory was that there were two incidents of penile penetration (Counts I and II),
one incident of cunnilingus (Count III), and one incident of digital penetration (Count IV).
Respondent was bound over for trial and a jury trial commenced. Following presentation of the State's
case-in-chief, respondent moved to dismiss all counts against respondent, arguing that the State had not proved
its case beyond a reasonable doubt. The State conceded that no evidence of digital penetration had been
presented, and stipulated to a dismissal of Count IV. The State, however, opposed the dismissal of the remaining
three charges. The district court found that the State had presented insufficient evidence of Count III and
dismissed that count.
2
The State filed a timely appeal from the district court's order.
3

[Headnote 1]
As an initial matter, we note that respondent's motion to dismiss the charges at the close of the State's
case-in-chief was not properly made, and should not have been granted by the district judge. Instead, respondent
should have moved for an advisory instruction to acquit pursuant to NRS 175.381(1).
4
See State v. Wilson, 104
Nev. 405, 407, 760 P.2d 129, 130 (1988) (it was error for the trial court to take the case from the jury by
dismissing the action at the close of the prosecution's case in lieu of giving the jury an advisory instruction to
acquit because of insufficient evidence). Alternatively, the district court could have entered a judgment of
acquittal, if the jury found appellant guilty of Count III. See NRS 175.381(2).
5

__________

2
The district court denied the motion to dismiss as to Counts I and II.

3
The district court orally ruled on the motion to dismiss on November 16, 1999. At the time of the oral
ruling, the district court said only that insufficient evidence had been presented to support the charge of
cunnilingus. The district court entered the written order granting the motion to dismiss Counts III and IV on
April 27, 2000. In the written order, the district court further concluded that the information charging respondent
lacked specificity, although this issue was not raised by the respondent as a basis for the motion to dismiss
below, and there was no discussion of this issue when the district court ruled on the motion.

4
NRS 175.381(1) provides: If, at any time after the evidence on either side is closed, the court deems the
evidence insufficient to warrant a conviction, it may advise the jury to acquit the defendant, but the jury is not
bound by such advice.

5
NRS 175.381(2) provides: The court may, on a motion of a defendant or on its own motion, which is made
after the jury returns a verdict of guilty, set aside the verdict and enter a judgment of acquittal if the evidence is
insufficient to sustain a conviction.
116 Nev. 1178, 1181 (2000) State v. Combs
[Headnotes 2, 3]
Despite the obvious error of the district court in granting respondent's motion to dismiss Count III of the
information, respondent may not now be retried on Count III. A judgment of acquittal, whether based on a jury
verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed
and terminates the prosecution when a second trial would be necessitated by a reversal. United States v. Scott,
437 U.S. 82, 91 (1978).
[Headnote 4]
It is a violation of the Double Jeopardy Clause [t]o permit a second trial after an acquittal, however
mistaken the acquittal may have been. Id. (Emphasis added.) Based on the foregoing, we have no choice but to
grant respondent's motion to dismiss this appeal, regardless of our view of the district court's actions or the
State's argument as to the merits of this appeal. Accordingly, we grant respondent's motion and dismiss this
appeal.
____________
116 Nev. 1181, 1181 (2000) Quintero v. McDonald
JACQUELINE QUINTERO, Appellant, v. JERRY McDONALD, Respondent.
No. 33287
December 19, 2000 14 P.3d 522
Appeal from a judgment on a jury verdict and an order of the district court denying a motion for a new trial
in a negligence action. Eighth Judicial District Court, Clark County; Jack Lehman, Judge.
Injured passenger brought personal injury action arising from automobile accident. The district court entered
judgment on jury verdict finding that defendants were entirely at fault but awarding no damages to passenger.
Passenger appealed. The supreme court held that jury was within its discretion in refusing to award damages.
Affirmed.
Leo P. Flangas, Las Vegas, for Appellant.
Jones & Williams, Las Vegas, for Respondent.
An order denying a motion for judgment notwithstanding the verdict is not appealable.
2. Damages.
A jury is permitted wide latitude in awarding tort damages, and the jury's findings will be upheld if supported by substantial
evidence.
Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.
3. New Trial.
A new trial may be granted if there has been a manifest disregard by the jury of the instructions of the court.
4. Damages.
In personal injury action arising from automobile accident in which plaintiff was a passenger in vehicle driven by one defendant
that was struck from rear by vehicle driven by another defendant, allegedly resulting in neck and back injuries to plaintiff, jury was
within its discretion in finding that defendants were entirely at fault but refusing to award damages. Plaintiff offered no conclusive
evidence of reasonableness of expenses or necessity of treatment, plaintiff suffered from pre-existing back injury that could have
caused her symptoms, and there were confirmed lapses in plaintiff's medical treatment.
The credibility of witnesses and the weight to be given their testimony is within the sole province of the trier of fact.
OPINION
Per Curiam:
This appeal concerns an action for personal injuries brought by appellant Jacqueline Quintero against
respondent Jerry McDonald and Dan McKennery. Although the jury found both McDonald and McKennery
at fault, the jury awarded Quintero no damages. The district court denied Quintero's motion for judgment
notwithstanding the verdict or, in the alternative, for a new trial. The sole assignment of error on appeal
arises from the failure of the jury to award damages.
FACTS
Quintero alleged below that she was injured when a motor vehicle operated by McKennery, in which she
was a passenger, was struck from the rear by a vehicle operated by McDonald. It is undisputed that the
accident occurred when both drivers were attempting to exit marked parking spaces in a commercial parking
lot. The impact caused only minor damage to both vehicles.
Shortly after the accident, Quintero retained an attorney and thereafter sought medical treatment for her
alleged injuries. She sporadically underwent chiropractic treatment for approximately three months.
Quintero thereafter filed her action against McKennery and McDonald, primarily claiming neck and
back injuries. Quintero entered into a pre-trial settlement of her claim against McKennery in exchange for a
monetary payment of $1,200.00.
Quintero proceeded to trial on her claim against McDonald. She presented evidence of severe neck and back
pain following the accident, a formal diagnosis of whiplash, and medical expenses of $1,885.00. Defense
evidence indicated that Quintero continued to perform housekeeping and babysitting chores following the
accident, confirmed several lapses in her chiropractic treatment, and confirmed her involvement in a separate
accident in which she sustained similar injuries the previous year.
[Headnote 1]
The jury apportioned liability as follows: 65% to McDonald; 35% to McKennery;
1
and 0% to Quintero.
The jury, however, awarded no damages. Quintero filed a motion for judgment notwithstanding the verdict or, in
the alternative, for a new trial. The district court denied the motion, and this appeal followed.
2

DISCUSSION
[Headnote 2]
A jury is permitted wide latitude in awarding tort damages, and the jury's findings will be upheld if
supported by substantial evidence. See Prahbu v. Levine, 112 Nev. 1538, 1543, 930 P.2d 103, 107 (1996); see
also Yamaha Motor Co. v. Arnoult, 114 Nev. 233, 238, 955 P.2d 661, 664 (1998). Substantial evidence is that
which a reasonable mind might accept as adequate to support a conclusion.' Prahbu, 112 Nev. at 1543, 930
P.2d at 107 (quoting State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986)). This
court has stated that it is not at liberty to weigh the evidence anew, and where conflicting evidence exists, all
favorable inferences must be drawn towards the prevailing party. Yamaha, 114 Nev. at 238, 955 P.2d at 664.
[Headnote 3]
A new trial may be granted if there has been a manifest disregard by the jury of the instructions of the court.
See Jaramillo v. Blackstone, 101 Nev. 316, 318, 704 P.2d 1084, 1085 (1985).
Prior to closing arguments at trial, the district court granted McDonald's motion to dismiss Quintero's claims
for future damages. Thus, the damages issue for the jury was limited to special and general damages
sustained prior to trial proceedings.
__________

1
NRS 41.141(3) prohibits apportionment of comparative negligence to settling parties. Thus, absent
agreement by the parties, the issue of McKennery's negligence should not have been submitted to the jury. This,
however, does not affect the resolution of this matter on appeal.

2
An order denying a motion for judgment notwithstanding the verdict is not appealable. See Uniroyal
Goodrich Tire v. Mercer, 111 Nev. 318, 320 n.1, 890 P.2d 785, 790 n.1 (1995) (citing Ross v. Giacomo, 97
Nev. 550, 635 P.2d 298 (1981)). However, we will treat this matter as an appeal from the judgment entered in
favor of the respondent and from the refusal of the district court to grant a new trial. See NRAP 3A(b).
and general damages sustained prior to trial proceedings. As stated, the jury refused to award damages in any
amount.
In denying Quintero's motion for a judgment notwithstanding the verdict, or in the alternative, for a new trial,
the district court stated:
The jury decision is reasonable in light of facts brought out during trial. [The jurors] were free to
conclude that although there was liability, there were no damages.
[Headnote 4]
Quintero contends that the district court erred by refusing to grant judgment notwithstanding the verdict or a
new trial in light of the failure by the jury to award damages. In this connection, Quintero relies on a stipulation
to the admission into evidence of her medical bills, that McDonald failed to procure the testimony of an expert,
and that her evidence of damages was uncontroverted. We disagree and conclude that the jury's verdict is
supported by substantial evidence.
As noted, Quintero presented evidence that she incurred $1,885.00 in medical expenses. However, she
offered no conclusive evidence of the reasonableness of the expenses or the necessity of the treatment. Although
McDonald did not present expert testimony challenging causation, testimony elicited from Quintero's witnesses
on cross-examination controverted Quintero's claim as to the extent of her injuries. Further, cross-examination of
Quintero's evidence revealed that Quintero suffered from a pre-existing back injury, which could have caused
her symptoms.
[Headnote 5]
The credibility of witnesses and the weight to be given their testimony is within the sole province of the trier
of fact. See McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992). We conclude that a reasonable jury
could have disbelieved Quintero's testimony concerning her alleged pain and suffering and, thus, could have
reasonably inferred that she was not injured as a proximate result of the accident. This is particularly true given
the confirmed lapses in medical treatment following the accident and evidence of her post-accident activities,
including child-care, cleaning, and swimming. Finally, even though the defense either stipulated to or did not
controvert her damage evidence with independent witnesses, the jury was not bound to assign any particular
probative value to any evidence presented.
We therefore hold that, on the facts of this case, the jury was within its proper discretion in finding the
accident was entirely the fault of the defendants, but refusing to award damages.
We therefore affirm the district court's refusal to order a new trial.
____________
116 Nev. 1185, 1185 (2000) Lay v. State
KEVIN LAMAR LAY, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 34197
December 19, 2000 14 P.3d 1256
This is an appeal from an order of the district court denying a post-conviction petition for a writ of habeas
corpus. Eighth Judicial District Court, Clark County; Michael L. Douglas, Judge.
Defendant was convicted in the district court of first-degree murder with use of deadly weapon in connection
with fatal shooting. Defendant appealed, and the supreme court affirmed, 110 Nev. 1189, 886 P.2d 448 (1994).
Defendant filed post-conviction petition for writ of habeas corpus. The district court denied petition. Defendant
appealed. The supreme court held that: (1) alleged unreliability of witness statements naming a person other
than defendant as firing shots from back seat of vehicle was not a proper basis for prosecution's withholding of
that evidence from defense; and (2) prosecutor's improper failure to disclose that evidence did not create
reasonable probability of different result; but (3) evidence that paramedic, who testified that victim identified
defendant as shooter, had stated in several pretrial interviews that victim did not tell her anything while she was
treating him was both favorable to defense and material, thus requiring disclosure of that evidence to defense
under Brady v. Maryland.
Reversed and remanded for retrial.
1. Criminal Law.
Determining whether the State adequately disclosed information under Brady v. Maryland involves both factual and legal
questions and requires de novo review by supreme court.
Brady and its progeny require a prosecutor to disclose evidence favorable to the defense if the evidence is material either to guilt or
to punishment, and failure to do so violates due process regardless of the prosecutor's motive. U.S. Const. amend. 14.
3. Criminal Law.
Evidence is material for Brady purposes if there is a reasonable probability that the result would have been different
if the evidence had been disclosed.
116 Nev. 1185, 1186 (2000) Lay v. State
probability that the result would have been different if the evidence had been disclosed.
4. Criminal Law.
After a specific request for evidence, omitted evidence is material for Brady purposes if there is a reasonable possibility it would
have affected the outcome.
5. Criminal Law.
Materiality under Brady does not require demonstration by a preponderance that disclosure of the evidence would have resulted in
acquittal.
6. Criminal Law.
Test under Brady for materiality of undisclosed evidence is not a sufficiency of the evidence test. A defendant need not show that
after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict.
7. Criminal Law.
A reasonable probability in affecting outcome is shown, for purposes of determining materiality of undisclosed evidence under
Brady, when the nondisclosure undermines confidence in the outcome of the trial.
Due process does not require simply the disclosure of exculpatory evidence. Evidence also must be disclosed if it provides
grounds for the defense to attack the reliability, thoroughness, and good faith of the police investigation or to impeach the credibility of
the State's witnesses. U.S. Const. amend. 14.
9. Criminal Law.
Alleged unreliability of witness statements naming a person other than defendant as firing shots from back seat of automobile
was not proper basis for prosecution's withholding that information from defense in first-degree murder prosecution arising from
shooting, especially in view of prosecutor's decision to plead alternative theory of aiding and abetting in case evidence showed
someone other than defendant shot victim.
10. Criminal Law.
State must disclose potentially exculpatory evidence if it is material. It is up to the defense to deal with problems concerning the
extent to which the evidence can be used or expanded upon.
11. Criminal Law.
Prosecutor's improper failure to disclose witness statements naming a person other than defendant as firing shots from back seat of
vehicle did not create reasonable probability of a different result in first-degree murder prosecution, and thus those statements were not
material for Brady purposes. Trial testimony, if accepted, indicated that defendant fired a rifle and a rifle bullet killed the victim, and
that other shooter apparently fired a pistol, which did not kill the victim.
12. Criminal Law.
Evidence that paramedic, who testified that victim identified defendant as shooter, had stated in several pretrial interviews that
victim did not tell her anything while she was treating him was both favorable to defense and material, thus obligating State under
Brady v. Maryland to disclose that evidence in first-degree murder prosecution arising from shooting. Other than evidence of
defendant's fingerprints on stolen car from which shots were fired, paramedic was the only neutral witness providing evidence that
defendant either fired shots or drove car.
116 Nev. 1185, 1187 (2000) Lay v. State
13. Criminal Law.
Supreme court's holding in affirming murder conviction on direct appeal, dealing with prosecutor's duty to divulge exculpatory
evidence to a grand jury, did not bar under law of the case principles a determination in post-conviction proceeding that prosecutor
was required to disclose to the defense the fact that key prosecution witness had given prior inconsistent statements. Holding on direct
appeal did not address prosecutor's duty to divulge exculpatory information to defendant. NRS 172.145.
Before Rose, C. J., Young and Becker, JJ.
OPINION
Per Curiam:
Appellant Kevin Lamar Lay contends that the State violated Brady v. Maryland, 373 U.S. 83 (1963), by
not providing him with two instances of exculpatory information.
1
One involved prior inconsistent
statements by a key witness for the prosecution. The other involved statements by three witnesses that a
second person had fired shots at the scene of the murder of which Lay was convicted.
FACTS
After a jury trial, Lay was convicted of first-degree murder with the use of a deadly weapon. The State
sought the death penalty, but the jury fixed the penalty at life without possibility of parole. The district court
sentenced Lay to two consecutive life terms without possibility of parole. This court affirmed Lay's
conviction. Lay v. State, 110 Nev. 1189, 886 P.2d 448 (1994).
The State had originally filed a twenty-two count indictment against Lay, charging him and two
codefendants with the murder of Richard Carter and several unrelated crimes including attempted murder,
assault with a deadly weapon, battery with a deadly weapon, trafficking and possession of a controlled
substance, grand larceny, robbery, aiming a firearm at a human being, intimidating a witness to influence
testimony, and racketeering. The racketeering counts were based on alleged illegal gang activity. Lay was a
member and leader of the Piru Bloods, a Las Vegas gang. The racketeering counts were dismissed for lack of
adequate evidence at the grand jury proceeding. The murder count was severed from the indictment, and Lay
was tried on that count apart from his codefendants.
__________

1
Lay claims alternatively that his trial counsel provided him with ineffective assistance. We do not reach
this claim given our conclusion that the prosecution violated Brady.
116 Nev. 1185, 1188 (2000) Lay v. State
The trial
The State presented evidence that around 11:30 p.m. on June 4, 1990, Lay drove a stolen white Oldsmobile
Cutlass into the parking lot of the AM-PM market at the corner of Martin Luther King Drive and Carey Avenue
in North Las Vegas and shot a gun from the car window, killing Carter.
James Haines testified that as he approached the AM-PM that night he heard two different kinds of
gunshots. As he got closer he saw fire coming from the front passenger window of a car, which then drove
away. Although he knew Lay, Haines did not see who was driving the car.
Dewain Norwood testified that he was in his car at the AM-PM when a car pulled up. Two people in the car
shot a rifle and a pistol at about three people in the parking lot. Norwood did not see who was shooting. The
driver fired the rifle out the passenger's side window, and a person in the back seat fired the pistol out the
window. The driver later stepped out of the car and shot again.
Gregory Haynes testified that he was a friend of the victim, Carter, and was inside the AM-PM store when
the shooting started. He went outside, and Carter had been shot. Haynes identified Lay as the shooter. Lay was
shooting out the driver's window of a car. Haynes identified the weapon as a semiautomatic .223 rifle. It was
possible that other weapons had been used, but Haynes heard no other weapons and saw no one else in the car.
Haynes did not know Lay to be a member of a gang and denied being in a gang himself. Haynes admitted that
after the shooting he had told police that he did not know the shooter and could not describe his face.
Cedric Stewart testified that he was with Carter when the shooting occurred. Stewart said he was formerly
affiliated with a Crip gang, the Gerson Park Kingsmen, and Carter had been a member. Lay was a leader of a
rival gang, the Piru Bloods. On the night in question, Stewart was speaking to Carter in the AM-PM parking lot
when shots came from a car. Lay was in the driver's seat of the car and fired what Stewart thought was a rifle
out the passenger's side window. Stewart admitted that after the shooting he had told police that he did not
know who had shot Carter.
Kevin Page testified that he was driving toward the AM-PM on the night of the shooting, heard shots, and
saw Lay driving a car from the AM-PM parking lot. He saw a second person in the back seat of Lay's car. At
the time of the shooting, Page was a friend of Carter and a member of the Gerson Park Kingsmen, who do not
like the Bloods. Page's former girlfriend had become Lay's girlfriend. Page waited a year before telling anyone
from law enforcement that he had knowledge of the crime.
116 Nev. 1185, 1189 (2000) Lay v. State
Robin Giddens testified that she was the paramedic who treated the victim after he was shot. A man at the
scene (the victim's brother she later learned) was panicked and threatened Giddens. Giddens found the victim in
shock and in extremely critical condition. He was going down hill as Giddens tended to him. The victim
answered her questions and talked with his brother. The victim whispered to his brother, K-Lay shot me man,
he shot me.' (K-Lay was Lay's nickname.) Giddens did not put this in her paramedic report because it's part of
the code I guess of working in gang related situations and in possibly dangerous situations that things aren't
written down. On cross-examination, Giddens admitted that, other than her partner, she could not remember the
name of the victim, his brother, fire department personnel, or any person at the crime scene that night except
K-Lay.
Giles Green, M.D., performed the autopsy of Carter's body. Carter was killed by a gunshot wound that
damaged his liver and vena cava. The bullet had passed through the body, but Green concluded from the nature
of the wound that the likely weapon was a high-velocity small-caliber rifle. A police identification technician
found two projectiles and three shell casings at the crime scene. The casings were .380 caliber, used in a
semiautomatic handgun. Inside the recovered stolen car, he found a .303 caliber shell casing, used in a rifle.
Shawn Turner testified that on the night in question he was at his mother's house, which was across the street
from Lay's house. Sometime between 11:00 and 11:30 p.m. he saw four or five men on foot, including Lay, run
up the street and go into the backyard of Lay's house. When the men first arrived, Lay held a handgun and the
others carried shotguns or rifles. After about ten minutes, the men left on foot; then fifteen or twenty minutes
later, they returned by car. The AM-PM was less than a five-minute drive from Lay's house. Turner's brother,
Lawrence Daniels, testified similarly, but Daniels testified that Lay held a rifle or shotgun and that he saw no
other weapons.
The car from which the fatal shots were fired was reported stolen around 11:00 p.m. that night. After the car
was recovered, Lay's fingerprints were found on the passenger door.
Anthony Dimauro, an officer with the North Las Vegas Police Department, testified for the defense. He was
one of the first officers at the crime scene and spoke to the victim, Carter, before the paramedics arrived. Carter
appeared to be in too much pain to carry on a conversation. When Dimauro asked him who had shot him, Carter
said that he did not know. Carter described neither the vehicle nor the shooter.
116 Nev. 1185, 1190 (2000) Lay v. State
The evidentiary hearing
After Lay petitioned for habeas relief, the district court held an evidentiary hearing in 1997 at which the
following evidence was presented.
Rita Brookins, a Clark County Deputy District Attorney, testified. Brookins was a law clerk with the Clark
County DA in 1992 when she pretrialed witnesses for Lay's murder trial, i.e., questioned them to determine
what their testimony would be. She worked for Robert Lucherini, the head of the gang unit in charge of
prosecuting Lay. Brookins pretrialed Robin Giddens, the paramedic that treated Carter in the parking lot of the
AM-PM after he was shot. Brookins interviewed Giddens several times, and Giddens consistently told her that
the victim had made no dying declaration. Giddens told her that the victim could not speak, that he did not say
anything to her, that he had a tube down his throat, and that there was so much going on it was a chaotic scene
that she didn't have the time to ask him anything.
Brookins last interviewed Giddens a day or so before Giddens was to testify at the trial. Lucherini then called
Giddens into his office and shut the door. Lucherini had not done this with any other witness in the case. About
15 or 20 minutes later, Lucherini brought Brookins into his office because Giddens had recalled something.
Giddens then told her that K-Lay did it. Brookins was amazed and surprised. In response to that surprise,
Rob [Lucherini] said, no, really. He said, I said to her do you remember him saying anything. And she goes,
well, like what? And he said, well, you know, did you hear anything like E-Lay or M-Lay and she said, Oh, yeah,
K-Lay. K-Lay did it. Brookins was shocked and felt suspicious.
When Brookins asked Lucherini if he was going to inform the defense about the victim's dying declaration,
he said that he did not have to because the case stemmed from grand jury proceedings, which were private. Lay's
counsel asked Brookins:
Q. Did you ever ask Mr. Lucherini whether or not the defense should be notified that Miss Giddens
had previously stated on three to five occasions the victim couldn't speak because he [had] tubes down
his throat?
A. Well, the defense already had that information because I had had to prepare a document, and I
believe it was already filed with the court, and it already listed the witnesses and a summary of their
testimony.
Q. And is it your testimony that you prepared something saying that Miss Giddens had said
previously that she [sic] could not speak because people
A. You know, I don't remember specifically. I haven't seen the document in five years, I
don't remember specifically.
116 Nev. 1185, 1191 (2000) Lay v. State
seen the document in five years, I don't remember specifically. But whatever she had said to me and what
her testimony was going to be would have been in that document.
Based on interviews with jurors after the trial, Brookins thought it was fair to characterize the paramedic's
testimony as devastating to Lay.
In other pretrial interviews, three witnesses told Brookins that Spike was in the car in the back seat shooting
out the window also. Brookins gave this information to Lucherini. He did not provide it to the defense, saying
that Spike had already been ruled out as a suspect.
Brookins went to Drew Christensen with her concerns about the statements regarding another shooter and
Giddens's inconsistent statements. (Christensen prosecuted Lay's trial with Lucherini.) After the trial, she and
Christensen went to see Lay's trial counsel, David Schieck, and told him about this information. Schieck had
been unaware of it until then.
A number of witnesses at the evidentiary hearing testified that discovery had been very limited in this case.
Unlike its usual policy, the DA's office did not open its file to the defense. The district court had to rule on
various defense motions seeking discovery. The prosecution was required to provide only what was mandated by
statute because the case involved a gang dispute and the prosecution was concerned about the safety of
witnesses. The defense did subpoena police records.
Schieck testified. When paramedic Giddens testified at trial, Schieck and co-counsel Lizzie Hatcher expected
only foundational testimony as to the crime scene and the condition of the victim. They had never been informed
that she would testify that the victim made a dying declaration identifying Lay as his killer. Nor had they been
informed of Giddens's prior inconsistent statements that the dying man had said nothing. Schieck and Hatcher
tried not to indicate to the jury how damaging they felt Giddens's testimony was. Schieck did not learn about the
prior inconsistent statements or the witnesses' identification of another shooter until Christensen and Brookins
visited him after the trial and informed him that the information had been withheld.
Hatcher, Schieck's co-counsel, also testified that the defense never received any information that Giddens
knew of a dying declaration or had made prior inconsistent statements. Nor was the defense given information
about a shooter named Spike.
Christensen, who prosecuted the case with Lucherini, testified. Lay's prosecution was unusual because it was
brought by indictment and there was no open file. Christensen could tell the frustration the defense had at trial
because they were handcuffed in that much of the evidence they saw at trial I think was
probably the first time they saw it."
116 Nev. 1185, 1192 (2000) Lay v. State
in that much of the evidence they saw at trial I think was probably the first time they saw it.
The State called paramedic Giddens to testify. She recounted her experience at the crime scene on the night
of the shooting, recalling that the patient told the other guy that um, that K-Lay shot him was what he said.
That night, Giddens spoke with her partner about whether she should document the victim's statement. He was
against doing so, and the general practice was not to because if paramedics report such matters they could be in
danger from people in the field who might equate them with the police. Her husband felt the same way.
Giddens did not think about it again until she was called into Lucherini's office before the trial. Lucherini
asked her if she had heard of certain names, including Kevin Lamar Lay. She said no.
And then he asked me about Pele, if I had ever heard the name Pele.
. . .
Well, I knew it was a soccer player or something like that from Canada but that's when it kind
of flashed back to the scene and that's when I remembered what the guy had said, I remember him
calling him K-Lay.
Giddens admitted on cross-examination that she probably told Brookins that she did not remember any statement
by the victim because she had spaced it, put it aside. She admitted that she had never been involved in another
case with a dying declaration. Though the case was unusual, one of the aspects of emergency care is putting it
behind you. When asked why she decided to testify in a capital murder trial after she initially declined to even
mention the incident in her report, she responded, as I thought about it I came to the conclusion it was
something I had to do.
Lucherini testified. When he interviewed Giddens, he suspected that she might know more than she had
previously revealed. He did not say K-Lay to Giddens until she had said it. He did not remember specifically
what jogged her memory, but there was a name association done. Asked if he could have said the name Pele to
her, Lucherini said it was possible. He did not ask Giddens why she had previously told Brookins that the victim
could not and did not say anything. When cross-examined as to why he did not inform the defense of the dying
declaration, Lucherini responded, The defense had the ability to interview any of these witnesses.
Lucherini remembered someone called Spike being associated with the shooting. Lucherini was aware that
there might have been another person or two in the car with Lay during the shooting, but he felt he could
legitimately identify only Lay to the jury.
116 Nev. 1185, 1193 (2000) Lay v. State
but he felt he could legitimately identify only Lay to the jury. Asked on cross-examination why he did not inform
the defense that three witnesses had reported that Spike had been identified as a shooter, Lucherini said that the
prosecution had received a lot of information in the case, much of it unreliable and unsupported, and that the
witnesses had given inconsistent statements.
The district court's order
The district court took the matter under submission in September 1997. Ruling from the bench in April 1999,
it denied the habeas petition and asked the State to prepare a written order. The order was entered June 4,
1999.
The written order concluded: There is no evidence that the State failed to disclose exculpatory evidence.
The evidence that Spike was a shooter was neither exculpatory nor material. Lucherini had ruled out Spike
because such information was not reliable. There was no discovery regarding Spike to be turned over and
no indication that any reports or investigations were not turned over. As an aider and abettor, Lay would
have been found guilty even if there was another shooter in the car.
Regarding the failure to inform the defense that witnesses had made prior inconsistent statements, the
district court stated that the state supreme court already concluded on direct appeal that a prosecutor need not
disclose such evidence to a grand jury because it does not explain away the charge; thus the doctrine of the
law of the case controls. Although the court was not sure why paramedic Giddens recanted her prior
statements when she did, there was nothing that was adduced or offered that indicates that [her] testimony . . .
was coerced or perjured. Also, the defense was aware that Giddens had previously denied that the victim said
anything. Though discovery had been limited, the defense had received pertinent police reports and was not
handicapped based on defense counsel's admissions that they had received all the information.
The order also rejected Lay's claims of ineffective assistance of counsel.
DISCUSSION
Standard of review and applicable law
[Headnote 1]
Determining whether the State adequately disclosed information under Brady v. Maryland, 373 U.S. 83
(1963), involves both factual and legal questions and requires de novo review by this court. See Mazzan v.
Warden, 116 Nev. 48, 66, 993 P.2d 25, 36 (2000).
116 Nev. 1185, 1194 (2000) Lay v. State
[Headnotes 2-4]
Brady and its progeny require a prosecutor to disclose evidence favorable to the defense if the evidence is
material either to guilt or to punishment. See Jimenez v. State. 112 Nev. 610, 618-19, 918 P.2d 687, 692 (1996).
Failure to do so violates due process regardless of the prosecutor's motive. Id. at 618, 918 P.2d at 692. Evidence
is material if there is a reasonable probability that the result would have been different if the evidence had been
disclosed. Id. at 619, 918 P.2d at 692. In Nevada, after a specific request for evidence, omitted evidence is
material if there is a reasonable possibility it would have affected the outcome. Id.
[Headnotes 5-7]
Materiality does not require demonstration by a preponderance that disclosure of the evidence would
have resulted in acquittal. Kyles v. Whitley, 514 U.S. 419, 434 (1995). Nor is it a sufficiency of the evidence
test; a defendant need not show that after discounting the inculpatory evidence in light of the undisclosed
evidence, there would not have been enough left to convict. Id. at 434-35. A reasonable probability is shown
when the nondisclosure undermines confidence in the outcome of the trial. Id. at 434.
[T]he character of a piece of evidence as favorable will often turn on the context of the existing or potential
evidentiary record. Id. at 439. The prosecutor is responsible for determining whether evidence is material and
should be disclosed. Thus,
a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence. See
[United States v. Agurs, 427 U.S. 97, 108 (1976).] ([T]he prudent prosecutor will resolve doubtful
questions in favor of disclosure). This is as it should be. Such disclosure will serve to justify trust in the
prosecutor as the representative . . . of a sovereignty . . . whose interest . . . in a criminal prosecution is
not that it shall win a case, but that justice shall be done. Berger v. United States, 295 U.S. 78, 88
(1935). And it will tend to preserve the criminal trial, as distinct from the prosecutor's private
deliberations, as the chosen forum for ascertaining the truth about criminal accusations.
Kyles, 514 U.S. at 439-40.
[Headnote 8]
Due process does not require simply the disclosure of exculpatory evidence. Evidence also must be
disclosed if it provides grounds for the defense to attack the reliability, thoroughness, and good faith of the
police investigation or to impeach the credibility of the State's witnesses. See id. at 442 n.13, 445-51.
116 Nev. 1185, 1195 (2000) Lay v. State
Analysis
Lay contends that the prosecution violated Brady by withholding evidence of two kinds: statements by
witnesses that Spike was the shooter and prior inconsistent statements by the paramedic.
The evidence of another shooter
[Headnote 9]
Prosecutor Lucherini's claim that the evidence regarding Spike was unreliable was not a proper reason for
him to withhold the information from the defense. The only specific basis for this claim was Lucherini's
assertion that the witnesses had given inconsistent statements. However, prior inconsistent statements by other
witnesses did not prevent the State from relying on those witnesses' testimony at Lay's trial. In fact, Kevin Page,
one of the witnesses whom Lucherini deemed unreliable regarding Spike, was called by the State to testify and
place Lay behind the wheel of the car from which the fatal shots came. And Page had waited a year to give this
information to authorities. Also, the State presented evidence at trial that Michael Jones, nicknamed Spike, was
associated with Lay's gang and threatened one of the State's witnesses. Thus, the record tends to support, not
repel, the reliability of the evidence linking Spike to the shooting.
Lucherini's decision to withhold the information about another shooter is contrary to the Supreme Court's
concern to preserve the criminal trial, as distinct from the prosecutor's private deliberations, as the chosen
forum for ascertaining the truth about criminal accusations. Kyles, 514 U.S. at 440.
In deeming the evidence immaterial, the district court also relied on the fact that the State pleaded the
alternative theory that Lay aided and abetted in the murder. There was clear evidence of two shooters and two
weapons. The State therefore pleaded the alternative theory in case evidence showed that someone else shot the
victim. It stresses now that the trial evidence showed the victim was killed by a rifle bullet and Lay wielded the
rifle. Nevertheless, before the trial Lucherini decided it was prudent to plead the alternative theory of aiding and
abetting; at the same time, however, he decided evidence of another shooter was unreliable and withheld it from
the defense. These decisions were, at best, inconsistent.
[Headnote 10]
It appears that before trial Lucherini may have feared that if the defense received specific evidence of the
existence of another shooter, it might develop reasonable doubt as to whether Lay was the actual killer and guilty
of first-degree murder. Therefore, the evidence was potentially material, and Lucherini had a duty
to disclose it.
116 Nev. 1185, 1196 (2000) Lay v. State
evidence was potentially material, and Lucherini had a duty to disclose it. [T]he character of a piece of
evidence as favorable will often turn on the context of the existing or potential evidentiary record. Kyles, 514
U.S. at 439 (emphasis added). The State must disclose potentially exculpatory evidence if it is material; it is up
to the defense to deal with problems concerning the extent to which the evidence can be used or expanded upon.
Mazzan, 116 Nev. at 72-73 n.6, 993 P.2d at 40 n.6.
[Headnote 11]
However, in light of the evidence presented at the trial, we discern no reasonable probability of a different
result in either the guilt or penalty phase. The jury heard strong evidence that Lay was not the only shooter but
still found him guilty of first-degree murder and agreed on a sentence of life in prison without parole. The trial
testimony, if accepted, indicated that Lay fired a rifle and a rifle bullet killed the victim. Therefore, the other
shooterwhether Spike or someone elseapparently fired a pistol, which did not kill the victim. Lay has not
shown how the evidence regarding Spike would throw this scenario into doubt. Although Lay implies that the
withheld evidence indicated that Spike was the only shooter, not Lay, this is incorrect. It indicated that Spike
was a second shooter.
The evidence of the paramedic's prior inconsistent statements
[Headnote 12]
In several pretrial interviews, paramedic Giddens stated that the victim did not tell her anything while she
treated him, but these prior statements were completely contrary to her trial testimony. This is undisputed.
There is also no question that these prior inconsistent statements were favorable to the defense and material
because they could have been used to impeach the credibility of a key witness for the State. Giddens was key
because she appeared to be the one disinterested witness who could identify Lay, albeit indirectly, as the
shooter.
If Giddens had been impeached with evidence of her prior inconsistent statements, it may be that Lay still
would have been convicted, and there still would have been sufficient evidence to uphold the conviction. But the
proper test to determine a Brady violation is not a showing that the evidence would have been insufficient or an
acquittal would have resulted if the withheld evidence had been disclosed: the question is whether there is a
reasonable probability of a different result if the defense had known of Giddens's prior inconsistent statements.
See Kyles, 514 U.S. at 434-35.
The three witnesses who identified Lay as the shooter or as the driver of the stolen car were all friends of the
victim or even affiliated with a gang at odds with Lay's.
116 Nev. 1185, 1197 (2000) Lay v. State
iated with a gang at odds with Lay's. The two who testified that Lay was the shooter originally said that they
could not identify the shooter, and the one who testified that Lay was the driver did not come forward with this
information for a year. Other than testimony by Giddens of the victim's dying declaration, the only apparently
neutral evidence linking Lay to the crime was his fingerprints on the stolen car. (The evidence that around the
time of the crime Lay was with several other men at his home and had a rifle, shotgun, or pistolwhile
consistent with his guiltdoes little to prove that he committed the murder.) Thus, if the defense had been able
to confront Giddens with her original account that the victim said nothing and the way in which she had changed
that account, we conclude that there is a reasonable probability that one or more jurors would not have been
convinced beyond a reasonable doubt that Lay committed first-degree murder.
The remaining question is whether the defense was given this information. Without citing any specific facts,
the district court's order stated the defense was informed that Giddens had previously related that the victim did
not say anything. In concluding that the State had not violated any discovery requirements, the order also
referred to defense counsel's admissions that they had received all the information. We have held that [a]
district court's determinations of fact will not be set aside if they are supported by substantial evidence. Jones v.
State, 113 Nev. 454, 470, 937 P.2d 55, 65 (1997). We conclude that these findings are not supported by
substantial evidence.
The only evidence that suggests that the defense was informed of Giddens's prior inconsistent statements
came at the evidentiary hearing. Brookins said that
the defense already had that information because I had had to prepare a document, and I believe it was
already filed with the court, and it already listed the witnesses and a summary of their testimony.
Q. And is it your testimony that you prepared something saying that Miss Giddens had said
previously that she [sic] could not speak because people
A. You know, I don't remember specifically. I haven't seen the document in five years, I don't
remember specifically. But whatever she had said to me and what her testimony was going to be would
have been in that document.
(Emphasis added.)
This evidence is equivocal. Brookins did not remember whether the summary of Giddens's statements
specifically included the information that the victim had said nothing to her. It would not be surprising if a
summary of what her testimony was going to be" did not affirmatively include what was, in effect,
noninformationnoninformation which did not really become significant until Giddens
changed her account.
116 Nev. 1185, 1198 (2000) Lay v. State
be did not affirmatively include what was, in effect, noninformationnoninformation which did not really
become significant until Giddens changed her account.
The clear weight of the evidence is that the defense was not told about either Giddens's original account that
the victim said nothing in her presence or her later account that he did. Lucherini conceded that the defense was
not told about the latter, i.e., that Giddens would testify about a dying declaration by the victim. And, contrary to
the district court's finding, defense counsel did not say that they had received all the information. Both Schieck
and Hatcher stated under oath they were never informed that Giddens would testify that the victim identified Lay
as his killer or that Giddens had first stated several times that the dying man had said nothing. Nor, if defense
counsel had been informed of the prior inconsistent statements, does it make sense that they failed to use them to
impeach Giddens once she testified differently. Schieck and Hatcher would certainly have known to do so; they
repeatedly impeached other defense witnesses with their prior inconsistent statements and failure to speak to
authorities.
Also, as discussed above, Lucherini admitted that he did not find it necessary to inform the defense that a
person other than Lay had been identified as a shooter; therefore, it seems likely he would have felt the same
way about Giddens's inconsistent statements. At the evidentiary hearing he declared that exculpatory evidence
is evidence that explains away the crime. This is a constricted and incorrect view of Brady material. Due
process does not require simply the disclosure of exculpatory' evidence. Evidence also must be disclosed if it
provides grounds for the defense to attack the reliability, thoroughness, and good faith of the police
investigation, to impeach the credibility of the state's witnesses, or to bolster the defense case against
prosecutorial attacks. Mazzan, 116 Nev. at 67, 993 P.2d at 37. The proper question is whether evidence is
favorable' to the defense. Id. at 71, 993 P.2d at 39 (quoting Kyles, 514 U.S. at 439).
Furthermore, at the evidentiary hearing Brookins assumed that the document she had prepared, summarizing
the expected testimony of witnesses, had been filed with the district court and thus provided to the defense.
However, the record plainly shows that neither the court nor the defense ever received such a document. Well
into the trial, the district court
2
addressed Lucherini:
[Y]ou are going to have witnesses testify who are not known to the defense. Any witness you're going to
have testify at that time . . . if there is a written statement for them I'd like to have you give it to
the defense at the time they're testifying.
__________

2
District Judge Addeliar D. Guy presided at the trial.
116 Nev. 1185, 1199 (2000) Lay v. State
I'd like to have you give it to the defense at the time they're testifying.
And if you do not have a written statement [for] them, please have your office make a brief synopsis
of what they're going to say.
(Emphasis added.) Lucherini replied, Judge, I'm obviously unprepared because I've never heard of a case that
says we have to do that. I'm not familiar with a statute that says we have to do that. (Emphasis added.) The
court responded:
[T]he defense is entitled to anything [State witnesses] may have said. There is no way they can
cross-examine it to find out whether or not this statement is now in conflict with a previous statement or
not, because they have no previous statement, they have nothing at all. Somewhere in someone's notes
there should be a synopsis of what the witness is going to state, otherwise you wouldn't be calling him.
(Emphasis added.) After a brief recess, the court asked:
[M]ost of those witnesses have not been reduced down to any statement, is that correct?
Mr. Lucherini: Judge, the State intends to call about four witnesses that were not given to the
defendant.
The Court: To the best of your knowledge have there been any written statements made by them?
Mr. Lucherini: The second of the four has a written statement. I do not believe that it was ever given
to the police department . . . . This person is the paramedic.
. . .
At this time the State has given a copy of the paramedic report to defense counsel for them to review
and to look at. And I believe if they'll review they'll find out that nothing in that statement is of any
investigatory nature at all.
(Emphasis added.)
Thus, Lucherini never provided the defense with a synopsis of expected testimony for Giddens or several
other witnesses. After the trial was under way and after the court insisted, Lucherini handed over Giddens's
paramedic report. But he still provided no summary of her expected testimony, which, unlike the paramedic
report, would have contained critical information of an investigatory naturethe victim's dying
declarationas well as Giddens's prior inconsistent statements.
[Headnote 13]
We conclude that the district court manifestly erred in finding that the defense was informed of Giddens's
prior inconsistent statements.
116 Nev. 1185, 1200 (2000) Lay v. State
statements.
3
We also conclude that the information withheld was favorable to the defense and material under
Brady.
4

CONCLUSION
The State violated Brady v. Maryland, 373 U.S. 83 (1963), when it failed to inform the defense of prior
inconsistent statements by a key prosecution witness. We therefore reverse Lay's judgment of conviction and
remand for retrial.
____________
116 Nev. 1200, 1200 (2000) Brown v. Dist. Ct.
FLORENCE BROWN and DAVID BROWN, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for THE COUNTY OF CLARK, and THE HONORABLE JAMES
A. BRENNAN, Senior Judge, Respondents, and JOHN S. THALGOTT, M.D., Real Party In Interest.
No. 34501
December 19, 2000 14 P.3d 1266
Original petition for a writ of mandamus challenging a district court order disqualifying petitioners'
co-counsel, Thomas C. Mehesan.
After district court disqualified plaintiffs' counsel in medical malpractice action, plaintiffs filed petition for
writ of mandamus.
__________

3
The State also asserts that all its witnesses, including Giddens, were available to the defense and defense
counsel are therefore responsible if they failed to obtain material evidence. It is true that Brady does not require
the State to disclose evidence which is available to the defendant from other sources, including diligent
investigation by the defense. Steese v. State, 114 Nev. 479, 495, 960 P.2d 321, 331 (1998). However, the
State's argument is flawed in two ways.
First the record indicates that Giddens and other witnesses were not available to the defense as the evidence
set forth above makes clear. As the district court stated during the trial: At the request of the State several
witnesses were held incommunicado from defense counsel . . . . Second, we conclude that even diligent
investigation by the defense could not be expected to uncover prior inconsistent statements made to the State in
this case.

4
The district court also erred in concluding that under the law of the case the prosecutor was not required to
disclose to the defense any evidence of prior inconsistent statements by witnesses. Our holding on direct appeal
dealt with a prosecutor's duty to divulge exculpatory evidence to a grand jury under NRS 172.145. We did not
address the prosecutor's duty to divulge exculpatory information to the defendant under Brady. See Lay, 110
Nev. at 1197-98, 886 P.2d at 453-54. In fact, we specifically noted that a criminal defendant is certainly
entitled to impeach a witness' credibility and testimony at trial based upon prior inconsistencies. Id. at 1198,
886 P.2d at 453-54.
The supreme court, Rose, C. J., held that disqualification of plaintiffs' counsel was not warranted.
Petition granted.
Agosti, J., with whom Shearing and Leavitt, JJ., agreed, dissented.
Thomas C. Mehesan, Las Vegas; Lionel Sawyer & Collins and Dennis L. Kennedy and David N.
Frederick, Las Vegas; Gillock Markley & Killebrew and Julie A. Mersch, Las Vegas, for Petitioners.
Pico & Mitchell and Rebecca L. Mastrangelo and Jill M. Chase, Las Vegas, for Real Party in Interest.
District courts are responsible for controlling the conduct of attorneys practicing before them, and have broad discretion
in determining whether disqualification is required in a particular case.
Although doubts should generally be resolved in favor of disqualification of counsel, parties should not be allowed to
misuse motions for disqualification as instruments of harassment or delay.
When considering whether to disqualify counsel, the district court must balance the prejudices that will inure to the
parties as a result of its decision.
To prevail on a motion to disqualify opposing counsel, the moving party must first establish at least a reasonable
possibility that some specifically identifiable impropriety did in fact occur, and then must also establish that the likelihood of
public suspicion or obloquy outweighs the social interests which will be served by a lawyer's continued participation in a
particular case.
For purpose of determining whether disqualification of counsel is warranted, likelihood of public suspicion or obloquy can
be established by evidence showing not just the possibility, but a reasonable probability, that the challenged attorney actually
received privileged or confidential information.
In medical malpractice action, disqualification of plaintiffs' counsel was not warranted by fact that defense counsel's
secretary left defense counsel's firm to work for law firm with which plaintiff's counsel worked closely on case prior to firm's
withdrawal from case. There was no evidence that plaintiffs' counsel acquired disqualifying information, and defendant
physician would not have been prejudiced by counsel's continued representation of plaintiffs.
7. Mandamus.
A writ of mandamus is properly used to challenge a district court's order disqualifying counsel.
OPINION
By the Court, Rose, C. J.:
This writ petition presents us with the question whether a party's counsel of choice should be
disqualified based on his close association with a law firm disqualified under SCR 160 for an imputed
conflict of interest.
1
We conclude that disqualification is not warranted absent proof of a reasonable
probability that counsel actually acquired privileged, confidential information, and we therefore grant
the petition.
Petitioner Florence Brown sustained life-threatening injuries in an automobile accident in August
1992. She was hospitalized and underwent surgery by real party in interest, Dr. John Thalgott, and Dr.
Jeffrey Zapinsky.
2
In late 1993 or early 1994, Mr. and Mrs. Brown hired attorney Thomas C. Mehesan
to represent them.
Mehesan negotiated a settlement of the automobile accident case; however, he felt compelled to
withdraw from representation of the Browns when they and medical care lien holders both claimed the
settlement proceeds that had been deposited in Mehesan's trust account. Mehesan referred the Browns to
the law firm of Barker, Gillock, Koning & Brown (later Gillock, Koning, Markley & Killebrew; now
Gillock, Markley & Killebrew), which agreed to represent the Browns in a medical malpractice action.
The Gillock firm commenced proceedings before the Medical-Legal Screening Panel (now the
Medical-Dental Screening Panel) against Dr. Thalgott. Dr. Thalgott was represented by attorney Neil G.
Galatz, who had previously represented the doctor in other matters. Galatz was assisted in his
representation of Dr. Thalgott by his paralegal and personal secretary, Lucrezia Smith, who had worked
for Galatz since July 1987. The screening panel issued a finding of no reasonable probability of medical
malpractice by Dr. Thalgott in February 1996, and the Gillock firm filed a medical malpractice complaint
on behalf of the Browns in March 1996.
In September 1996 Smith left the Galatz law firm to work for the law firm of Broening, Oberg,
Woods, Wilson & Cass; Smith then left that firm in March 1997 to work for the law firm of Kummer,
Kampfer, Bonner & Renshaw. Meanwhile, in February 1997, James F. Pico of the Pico & Mitchell
law firm was substituted as Dr. Thalgott's attorney in place of Galatz.
__________

1
On December 20, 1999, the Southern Nevada Panel denied the petition by a split decision. On
January 27, 2000, the panel referred the matter for reconsideration by the full court and vacated its
order denying the petition.

2
Although Dr. Zapinsky is still a party in the underlying action, he is not a party to this proceeding.
1997, James F. Pico of the Pico & Mitchell law firm was substituted as Dr. Thalgott's attorney in place of
Galatz.
Mehesan resolved his potential conflict of interest with the Browns, and in April 1997 the Browns formally
associated Mehesan with the Gillock firm as their co-counsel. Firm partner Gerald Gillock was designated lead
counsel for trial; however, Mehesan was extensively involved in preparing for trial, and attended or took all
major depositions in the case.
In October 1997 this court issued its opinion in Ciaffone v. District Court, 113 Nev. 1165, 945 P.2d 950
(1997), which rejected a challenge by the Gillock firm to its disqualification in an unrelated wrongful death
action based on its employment of a legal secretary who had previously worked on the wrongful death case for
opposing counsel.
In May 1998 Gillock hired Smith as his personal secretary. Gillock screened Smith from the Brown case, but
did not notify Dr. Thalgott or obtain a waiver from him.
Also in May 1998, the district court scheduled a jury trial to begin in the underlying case on March 9, 1999.
In February 1999 Dr. Thalgott moved to continue the trial. The district court denied the motion, but
subsequently reset the trial for May 12, 1999, to accommodate the court's schedule.
On May 7, 1999, Dr. Thalgott filed a Motion to Disqualify Plaintiffs' Attorneys, based on Ciaffone and
Smith's employment with the Gillock firm. In his supporting affidavit, Dr. Thalgott swore he first became aware
that Smith had become Gillock's personal secretary on May 5, 1999, while preparing for trial. In their
opposition, petitioners conceded Ciaffone applied, but argued that disqualification was not warranted because
Dr. Thalgott's attorney knew that Smith had formerly worked for Galatz, and had known for at least two or three
months that Smith was now working for Gillock.
Dr. Thalgott's attorney acknowledged these facts at the May 10, 1999, hearing on the motion, but argued his
knowledge was irrelevant under the circumstances: he had not known the extent of Smith's involvement in Dr.
Thalgott's cases, and Dr. Thalgott had not known that Smith had changed sides.
Gillock then offered to withdraw himself and his firm from representation of the Browns, so that the case
could proceed to trial as scheduled with Mehesan taking over as trial counsel. Gillock and Mehesan both
indicated that Mehesan was ready to try the case. Dr. Thalgott's attorney argued Mehesan should be disqualified
as well because of his close association with Gillock. Notwithstanding repeated assertions by Gillock and
Mehesan that no confidential information had actually passed from Smith to either of them, or from Gillock to
Mehesan, the court granted the motion and disqualified both the Gillock firm and co-counsel
Mehesan.
motion and disqualified both the Gillock firm and co-counsel Mehesan.
Petitioners specially retained the law firm of Lionel, Sawyer & Collins and moved for reconsideration. The
parties fully briefed and argued the issue whether Mehesan was subject to imputed disqualification under SCR
160, given the fact that he was not a member of the disqualified firm.
In its order denying reconsideration, the district court clarified that it did not believe that Ciaffone mandated
automatic disqualification of co-counsel based on a double imputation of confidential knowledge. The court
declined to specify any particular test that should be applied in the co-counsel situation generally, and focused
instead on the specific facts before it. Accepting the truthfulness of the affidavits indicating there was no actual
transfer of privileged information, the court nevertheless decided the close working relationship between Gillock
and Mehesan required Mehesan's disqualification to avoid any appearance of impropriety. This writ petition
followed.
It is not disputed that Smith acquired privileged, confidential information from and relating to Dr. Thalgott
when she worked for Galatz. Smith's conflict of interest was imputed to the Gillock firm, which was disqualified
under SCR 160(2) and Ciaffone.
SCR 160(2) prohibits lawyer screening and imputes a lawyer's disqualification to the lawyer's firm.
3
In
Ciaffone, this court held that nonlawyer employees are subject to the same rules governing imputed
disqualification because to hold otherwise would grant less protection to privileged, confidential information
acquired by a lawyer's employees than to that acquired by the lawyer. Ciaffone, 113 Nev. at 1168, 945 P.2d at
953.
The district court properly declined to interpret Ciaffone as mandating automatic disqualification of
co-counsel based on a double imputation of Smith's knowledge. The question is whether Ciaffone's rationale
supports the imputed disqualification of co-counsel Mehesan for an appearance of impropriety without evidence
of a reasonable probability that there was a transfer of privileged, confidential information.
4
We conclude it
does not.
__________

3
SCR 160(2) provides:
When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the
same or a substantially related matter in which that lawyer, or a firm with which the lawyer was
associated, had previously represented a client whose interests are materially adverse to that person and
about whom the lawyer had acquired information protected by Rules 156 and 159(2) that is material to
the matter.

4
Relying on Collier v. Legakes, 98 Nev. 307, 646 P.2d 1219 (1982), and the fact that Nevada has not
adopted Canon 9 of the 1969 Model Code of Professional Responsibility, which states that a lawyer should
avoid even the appearance of professional impropriety, petitioners assert that disqualifica-
[Headnotes 1, 2]
District courts are responsible for controlling the conduct of attorneys practicing before them, and have
broad discretion in determining whether disqualification is required in a particular case. See Robbins v. Gillock,
109 Nev. 1015, 1018, 862 P.2d 1195, 1197 (1993); Cronin v. District Court, 105 Nev. 635, 640, 781 P.2d 1150,
1153 (1989). Courts deciding attorney disqualification motions are faced with the delicate and sometimes
difficult task of balancing competing interests: the individual right to be represented by counsel of one's choice,
each party's right to be free from the risk of even inadvertent disclosure of confidential information, and the
public's interest in the scrupulous administration of justice. See Hull v. Celanese Corp., 513 F.2d 568, 570 (2d
Cir. 1975). While doubts should generally be resolved in favor of disqualification, see Cronin at 640, 781 P.2d
at 1153; Hull, 513 F.2d at 571, parties should not be allowed to misuse motions for disqualification as
instruments of harassment or delay. See Flo-Con Systems, Inc. v. Servsteel, Inc., 759 F. Supp. 456, 458 (N.D.
Ind. 1990).
[Headnotes 3, 4]
When considering whether to disqualify counsel, the district court must balance the prejudices that will inure
to the parties as a result of its decision. Cronin, 105 Nev. at 640, 781 P.2d at 1153. To prevail on a motion to
disqualify opposing counsel, the moving party must first establish at least a reasonable possibility that some
specifically identifiable impropriety did in fact occur, and then must also establish that the likelihood of public
suspicion or obloquy outweighs the social interests which will be served by a lawyer's continued participation in
a particular case. Id. at 641, 781 P.2d at 1153 (quoting Shelton v. Hess, 599 F. Supp. 905, 909 (S.D. Tex.
1984)).
[Headnotes 5, 6]
Here, Smith's employment at the Gillock firm and Mehesan's close working association with Gillock
constituted evidence of a reasonable possibility that Gillock acquired confidential information from Smith and
shared it with Mehesan. However, as required by Cronin, the Browns must also establish a likelihood of public
suspicion or obloquy, which is to then be weighed against the social interests served by Mehesan's continued
participation.
__________
tion cannot be based on an appearance of impropriety. Collier, which addresses individual and vicarious
disqualification of prosecutors in criminal cases, does not support petitioners' argument. To the contrary, Collier
recognizes that disqualification may be warranted if an appearance of unfairness or impropriety is great enough
to undermine public trust and confidence in the judicial system. See id. at 310, 646 P.2d at 1221. That is not the
case here.
ipation. This likelihood can be established by evidence showing not just the possibility, but a reasonable
probability, that the challenged attorney actually received privileged or confidential information. Having
reviewed the evidence presented to the district court, we conclude that the equities do not favor severing the
attorney-client relationship between Mehesan and the Browns.
First, Smith, Gillock and Mehesan submitted affidavits rebutting the evidence that Mehesan could have
acquired privileged, confidential information about Dr. Thalgott, and the district court accepted the truthfulness
of these affidavits. Thus, there was no evidence that Mehesan actually or even probably acquired disqualifying
information.
Second, absent proof of at least a reasonable probability that Mehesan actually acquired privileged,
confidential information, Dr. Thalgott failed to establish that he would be prejudiced by Mehesan's continued
participation. In contrast, petitioners would be severely prejudiced by the disqualification of their counsel of
choice, as it would be very difficult for new counsel to economically and timely move the case to trial.
We are mindful of the quandary the district court faced in this case: allowing disqualification of co-counsel
without requiring proof that confidences were shared tends toward automatic disqualification, based on
re-imputation of an imputed conflict, while requiring such proof introduces all the problems associated with
screening that are identified in Ciaffone (difficulty litigating the issue, uncertainty about the effectiveness of
screening, the monetary incentive involved in breaching the screen, the fear of disclosing privileged information
in the course of proving an effective screen, and the possibility of accidental disclosures). We conclude that
requiring proof of a reasonable probability that counsel actually acquired privileged, confidential information
strikes the appropriate balance in disqualification cases such as this.
In light of the fact that there was no reasonable probability that Mehesan acquired confidential information,
and the fact that Dr. Thalgott would not be prejudiced by Mehesan's continued representation of the Browns
while the Browns would be greatly prejudiced by his removal, Mehesan's disqualification was not warranted
under Cronin. Consequently, we conclude the district court manifestly abused its discretion by disqualifying
Mehesan as counsel for petitioners under these circumstances.
[Headnote 7]
A writ of mandamus is properly used to challenge a district court's order disqualifying counsel. See Cronin,
105 Nev. at 639 n.4, 781 P.2d at 1152 n.4. Based on our conclusion that the district court manifestly abused its
discretion by disqualifying Mehesan as petitioners' counsel, we grant this petition.
Mehesan as petitioners' counsel, we grant this petition.
5
See Round Hill Gen. Imp. Dist. v. Newman, 97 Nev.
601, 637 P.2d 534 (1981). The clerk of this court shall issue a writ of mandamus compelling the district court to
vacate its order disqualifying Mehesan as counsel for petitioners.
6

Maupin, J., and Adams, D. J., concur.
Becker, J., concurring:
I concur in the result only.
Agosti, J., with whom Shearing and Leavitt, JJ., agree, dissenting:
The decision to disqualify counsel is within the broad and sound discretion of the district court. Absent a
showing of abuse of discretion, the district court's determination should not be disturbed. See Cronin v. District
Court, 105 Nev. 635, 640, 781 P.2d 1150, 1153 (1989). The reason for leaving questions of attorney
disqualification to the district court is that the primary responsibility for controlling lawyers' conduct in the
district court lies with that court, not with an appellate court. Unified Sewerage Agency of Washington County,
Or. v. Jelco Inc., 646 F.2d 1339, 1351 (9th Cir. 1981). In my opinion, the district court properly exercised its
discretion in disqualifying the co-counsel from further representation of the petitioners. Therefore, I dissent.
Attorney Neil Galatz had represented John S. Thalgott, M.D., at proceedings initiated against Dr. Thalgott by
Florence and David Brown before what was at the time known as the medical-legal screening panel. Galatz's
paralegal, Lucrezia Smith, directly assisted Galatz in that representation. She subsequently accepted employment
with the Gillock firm. There is no question that, while employed by Galatz, Smith acquired confidential
information
1
pertaining to Dr. Thalgott's defense against the Browns' action. It is clear that Smith's employment
at the Gillock firm requires disqualification of the Gillock firm from representation of the Browns in their
medical malpractice action against Dr. Thalgott.
__________

5
In addition, we vacate our previous order staying all proceedings in the underlying district court case, No.
A357067.

6
The Honorable Brent T. Adams, Judge of the Second Judicial District Court, was designated by the
Governor to sit in place of The Honorable Cliff Young, Justice, who voluntarily recused himself from
participation in the decision of this matter. Nev. Const. art. 6, 4.

1
SCR 156 is entitled Confidentiality of information and in subsection (1) states that [a] lawyer shall not
reveal information relating to representation of a client unless the client consents after consultation. Thus,
confidential information does not necessarily encompass only privileged information. See Phoenix Founders,
Inc. v. Marshall, 887 S.W.2d 831, 834 (Tex. 1994).
of the Browns in their medical malpractice action against Dr. Thalgott. See SCR 160(2); SCR 187; Ciaffone v.
District Court, 113 Nev. 1165, 945 P.2d 950 (1997). However, the district court also disqualified co-counsel,
Thomas C. Mehesan, along with the Gillock firm.
In Ciaffone, we rejected screening as a means of protecting the confidential attorney-client relationship from
a non-lawyer's breach of confidentiality. 113 Nev. at 1168, 945 P.2d at 952-53. Instead, we adopted a per se rule
of disqualification, imputing the non-lawyer employee's knowledge to the attorney.
I agree with the majority in rejecting a per se rule of double disqualification of co-counsel simply because a
conflict is imputed first to the attorney whose employee obtained confidential information during prior
employment. I believe that co-counsel may be sufficiently distanced from the imputed conflict that
disqualification may not be necessary. However, I disagree with the test applied by the majority to determine
that disqualification is not warranted in this case.
The majority has determined that no conflict of interest may be imputed to Mehesan because Dr. Thalgott
cannot prove by a reasonable probability that Mehesan actually acquired confidential information originating
from Smith and because the equities do not favor disqualification. This novel test imposes an impossible
burden upon Dr. Thalgott.
This court previously applied an apparently slightly, but actually significantly, different test for
disqualification in Cronin. Cronin did not involve an allegation that disqualification was warranted for breach of
client confidences or for imputed disqualification based upon a member of the firm actually possessing the
adverse party's confidentially obtained information. Cronin involved violations by counsel of SCR 182, which
prohibits an attorney from communicating with an adverse party who is represented by an attorney without the
consent of the attorney. Citing Shelton v. Hess, 599 F. Supp. 905 (S.D. Tex. 1984), we adopted a two-pronged
test in Cronin. First, to prevail on a motion to disqualify opposing counsel for an alleged ethical violation, the
moving party must first establish at least a reasonable possibility that some specifically identifiable impropriety
did in fact occur.' 105 Nev. at 641, 781 P.2d at 1153 (emphasis added) (quoting Shelton, 599 F. Supp. at 909).
Second, the moving party must also establish that the likelihood of public suspicion or obloquy outweighs the
social interests which will be served by a lawyer's continued participation in a particular case.' Id. This test is
the one utilized by the United States Court of Appeals for the Fifth Circuit to determine disqualification based
upon the appearance of impropriety. See Woods v. Covington County Bank, 537 F.2d 804, S13 {5th Cir.
1976).
813 (5th Cir. 1976). The question posed in this case is not one concerning the appearance of impropriety.
Both Shelton and Cronin are inapposite to the question of an imputed disqualification of co-counsel as both
cases dealt with an attorney's direct communications with the adverse party's managing employees without the
consent of counsel for the adverse party. In Shelton, two tests were cited with approval. The two-pronged test
that was adopted in Cronin was applied in Shelton because, as mentioned in Shelton, the moving party had
specifically alleged that the communications violated Canon 9 of the Texas Code of Professional Responsibility,
which provides that a lawyer should avoid even the appearance of impropriety. Shelton also applied a three-part
balancing test to resolve the specific question of disqualification based upon an allegation of a breach of DR
7-104 of Canon 7 of the Texas Code of Professional Responsibility which forbids communication with an
adverse party without the consent of the party's attorney. That test was originally articulated in Meat Price
Investigators Association v. Spencer Foods, Inc., 572 F.2d 163 (8th Cir. 1978).
2
That test identifies three
competing interests that must be balanced: (1) the client's interest in being represented by counsel of its choice;
(2) the opposing party's interest in a trial free from prejudice due to disclosures of confidential information; and
(3) the public's interest in the scrupulous administration of justice. Id. at 165.
Setting aside for a moment the majority's modification of the two-pronged test from a reasonable possibility
to a reasonable probability, the Cronin test makes sense in situations where, as in Shelton, an attorney's speaking
to an adverse party's managerial employees without counsel's knowledge or consent raises legitimate questions
concerning the appearance of impropriety. It makes less sense where, as here, the one asserting the conflict
actually provided confidential information to his counsel and the information was shared with an employee who
later took up employment with an attorney who was adversely involved in litigation over a substantially related
matter. The client imparted the confidences without ever expecting that the attorney or employee would join the
enemy camp. In both Shelton and Cronin, the employees knew they were speaking to an attorney
who represented interests adverse to their employer's.
__________

2
In Meat Price, the Eighth Circuit Court of Appeals ruled that it had jurisdiction, under 28 U.S.C. 1291
(1976 & Supp. II 1978), to decide interlocutory appeals from orders denying motions to disqualify counsel. Id.
at 164-65. However, in Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379 (1981), the United States
Supreme Court held that orders denying motions to disqualify counsel are not appealable final decisions under
1291. Although the Court did not specifically overrule Meat Price, it held that the Courts of Appeals are without
jurisdiction to hear such appeals. Id. Nevertheless, the holding in Firestone does not impact the legal analysis
contained in Meat Price.
employees knew they were speaking to an attorney who represented interests adverse to their employer's.
Of greater concern still, the majority has elevated the burden imposed in the first prong of the Cronin test
from proof of a reasonable possibility to a reasonable probability and has offered no justification in logic or
legal authority for the enhancement.
The majority's test requires that Dr. Thalgott prove by a reasonable probability that Smith actually shared
confidential information with Gillock
3
and with Mehesan directly or that the information was provided to
Mehesan through Gillock. As noted in In re American Home Products Corp., 985 S.W.2d 68, 74 (Tex. 1998),
placing the burden of proof on the moving party forces the party to reveal the very confidences sought to be
protected.
4

Dr. Thalgott can never meet the first prong of the majority's test, establishing by a reasonable probability that
some specifically identifiable impropriety did in fact occur, without violating the very confidences sought to be
protected. In addition, this proof requirement compels a great expenditure of time and resources. Dr. Thalgott
will either have to engage in discovery on the issue of what Smith learned through her employment with Galatz
or be placed in a position of disclosing the confidences himself in order to establish that the Browns' anticipated
strategy or tactics take this information into account.
The United States Court of Appeals for the Third Circuit rejected a per se rule disqualifying all co-counsel if
one co-counsel is disqualified for ethical reasons in Akerly v. Red Barn System, Inc., 551 F.2d 539 (3d Cir.
1977). The court stated, Instead, we adhere to . . . a careful sifting of all of the facts and circumstances. Id. at
543. Akerly was one of many factually similar cases discussed in Essex Chemical Corp. v. Hartford Accident &
Indemnity Co., 993 F. Supp. 241, 247 (D.N.J. 1998). Essex considered the disqualification of all defense counsel
who had participated in a joint defense agreement with an attorney who was disqualified for imputed
knowledge arising out of a member of the firm's prior representation of Essex. The Essex court also rejected a
per se rule of double disqualification based upon imputed knowledge. In Essex, like the case at hand, the
disqualified attorney was not the member or employee of the firm who had previously represented Essex, just as
Gillock had not previously represented Dr. Thalgott. The conflict arose because of another member of the
firm's prior representation of Essex, just as Smith's prior employment with Galatz caused
a conflict.
__________

3
This is never required under Ciaffone.

4
Texas permits screening and utilizes a conclusive presumption that a paralegal or legal assistant who worked
on a case imparted confidences and secrets. In In Re American Home Products, the Texas Supreme Court noted
that the issue is not whether secrets were imparted but whether there is a genuine threat of disclosure. 985
S.W.2d at 74.
another member of the firm's prior representation of Essex, just as Smith's prior employment with Galatz caused
a conflict. The Essex court gleaned a two-part test from the cases it analyzed. It stated the need for
a careful review of the facts to determine: (1) what, if any, confidences were actually shared between the
tainted attorney and the attorney sought to be disqualified, where the tainted attorney did not represent
the former client in question and (2) the nature of the relationship between the tainted attorney and the
attorney sought to be disqualified.
Id. at 251-52. However, the Essex court did not state with what degree of probability the trial court must find
that confidences were shared. Given the impossibility of establishing such a thing by a probability, I advocate
the reasonable possibility standard articulated in Shelton and Cronin.
I believe the moving party should establish facts from which it may be concluded directly or by inference that
confidential disclosure is a reasonable possibility. The second part of the majority's test is unnecessary for three
reasons. First, that prong is designed to address avoidance of the appearance of impropriety. Model Canon 9,
which addresses avoidance of the appearance of impropriety, was never adopted in Nevada. Second, I can think
of no reason to require such considerations when disqualification is sought because a reasonable possibility
exists that client confidences have actually been breached. These considerations are not required in any other
jurisdiction when the question is whether client confidences might have been disclosed, as far as I can discern.
Third, I believe we must provide greater protection for the sanctity of confidences revealed within the
attorney-client relationship than for the opposing party's desire to retain the attorney of his or her choice.
The majority would also require Dr. Thalgott to demonstrate prejudice if disqualification is not granted. In
Cronin, we did not require a party to prove prejudice. Cronin requires, as acknowledged by the majority, that the
district court balance the prejudices that will inure to the parties as a result of its decision. 105 Nev. at 640,
781 P.2d at 1153. This is an important distinction since Dr. Thalgott will not know until he has proceeded to trial
against co-counsel whether he has been prejudiced or not. I submit the court must define the prejudices that will
inure to Dr. Thalgott as the threat, rather than the certainty, that his confidences will be used by his adversary to
gain an advantage. The district court needs to assess the reality of that threat. Rather than balancing the
prejudices that will inure, I prefer the Essex court's approach, which is to balance the hardships. 993 F. Supp. at
254. This is certainly the meaning intended by the language in Cronin.
Cronin. I believe the majority has tortured Cronin's language regarding prejudices and created a new and
unwarranted requirement. The Essex court stated that the court must balance the hardships to the client whose
lawyer is sought to be disqualified against the potential harm to the adversary should the attorney be permitted to
proceed. Id. at 254; see Carlyle Towers Condom. Ass'n, Inc. v. Crossland Sav., FSB, 944 F. Supp. 341, 345
(D.N.J. 1996) ([A] delicate balance must be maintained between the sacrosanct privacy of the attorney-client
relationship . . . and the prerogative of a party to proceed with counsel of its choice.' (quoting Schiessle v.
Stephens, 717 F.2d 417, 420 (7th Cir. 1983))).
The majority has conceded, as it must, a reasonable possibility that disclosure was made. Indeed, the real
possibility that disclosure occurred is evident from the very close and unique relationship Mehesan bore to the
Gillock firm in the context of this case. Applying the careful sifting of all of the facts and circumstances
requirement of Akerly, 551 F.2d at 543, and considering the nature of the relationship between the tainted
attorney and the attorney sought to be disqualified as required in Essex, 993 F. Supp. at 252, I note that the
district court had the following facts before it.
Mehesan ordinarily worked out of his home. While representing the Browns in their medical malpractice
action against Dr. Thalgott, Mehesan variously used an empty office or a conference room at the Gillock firm to
review medical records and discovery documents, to prepare for court appearances, to take depositions and to
meet with defense counsel. Mehesan utilized the services of a Gillock firm secretary and a Gillock firm
paralegal. He consulted with Julie Mersch, a Gillock firm associate involved in the Browns' action against Dr.
Thalgott, and worked directly with Gillock on trial preparation.
Although the district court based its decision on the need to avoid the appearance of impropriety, it did not
abuse its discretion in disqualifying Mehesan. A careful review of the district court's order reveals that the
district court performed exactly the kind of analysis advocated by Essex and the first prong of Shelton and
Cronin. The court emphasized that it rejected a per se double imputation rule. It stated:
This court does not rule on the particular test that should be applied in the co-counsel situation. An
examination of the relationship between co-counsels in this case will suffice.
Mr. Mehesan worked closely with members of Mr. Gillock's law firm preparing for this case. From a
review of the record it seems Mr. Mehesan was intimately involved in much of the discovery in this case,
including appearing at most of the depositions.
most of the depositions. Mr. Gillock indicated his involvement in these pretrial activities was limited to
reports from . . . Mersch . . . . Despite this lack of involvement in pretrial matters, Mr. Gillock was listed
as lead counsel for trial. As lead counsel Mr. Gillock must have worked closely with Mr. Mehesan in
preparation for, at least, the actual trial . . . . It naturally flows that all aspects of this case were discussed
between the two, and the court would assume that as professionals they necessarily had to have a
correlated case preparation to perform their respective functions to participate in the trial as co-counsel . .
. . [T]his court . . . does feel the closeness of this association requires Mr. Mehesan's disqualification to
stand . . . .
Since the district court's decision to disqualify Mehesan was within its discretion, and since it is evident from
the above that the district court properly exercised its discretion, I would deny the petition.
____________
116 Nev. 1213, 1213 (2000) Blackjack Bonding v. Las Vegas Mun. Ct.
BLACKJACK BONDING, PAT'S BAIL BONDS, ALL AMERICAN BAIL BONDS, SIGNATURE BAIL
BONDS, MAINSTREET BONDING & BAIL, MARY'S BAIL BONDS, MIKE'S BAIL BONDS, and
ABLE BAIL BONDS, Appellants, v. CITY OF LAS VEGAS MUNICIPAL COURT and CITY OF
LAS VEGAS, Respondents.
No. 33345
December 29, 2000 14 P.3d 1275
Appeal from a district court order dismissing a complaint to recover filing fees paid by Las Vegas bail bond
sureties to the Las Vegas Municipal Court. Eighth Judicial District Court, Clark County; Kathy A. Hardcastle,
Judge.
Bail bond sureties sought to recover filing fees paid to the municipal court. The district court granted City's
motion to dismiss for failure to state a claim. Sureties appealed. The supreme court, Shearing, J., held that, as a
matter of first impression, municipal courts are authorized to collect filing fees for bail bonds, under both the
separation of powers doctrine and the power inherent in a court by virtue of its sheer existence.
Affirmed.
Haney, Woloson & Mullins and Robert E. Griffy, Las Vegas, for Appellants.
Bradford R. Jerbic, City Attorney, and Stephen G. Jones, Deputy City Attorney, Las Vegas, for
Respondents.
District court's order dismissing bail bond sureties' action against City to recover bail bond filing fees would be reviewed on appeal
as an order granting a motion to dismiss for failure to state a claim, rather than as an order granting summary judgment, though the
district court had been presented with documents outside of the pleadings, where the district court did not rely on those documents in
its ruling. NRCP 12(b)(5), (c).
An order granting a motion to dismiss for failure to state a claim upon which relief can be granted faces a rigorous standard of
review on appeal, because the appellate court must construe the pleadings liberally and accept all factual allegations in the complaint as
true. NRCP 12(b)(5).
The court must draw every fair inference in favor of the non-moving party, as to a motion to dismiss for failure to state a claim.
NRCP 12(b)(5).
A complaint will not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff could prove no set
of facts which, if accepted by the trier of fact, would entitle him or her to relief. NRCP 12(b)(5).
5. Courts.
Opinions of the Attorney General are not binding legal authority or precedent.
6. Courts.
A court's jurisdiction is subject to legislative control.
7. Courts.
Independent, inherent judicial powers are not subject to legislative control.
Inherent judicial powers stem from two sources: the separation of powers doctrine and the power inherent in a court by virtue of its
sheer existence. Const. art. 3, 1.
Under the separation of powers doctrine, each branch of government is considered to be co-equal, with inherent powers to
administer its own affairs. Const. art. 3, 1.
Without inherent powers to perform its duties, the judiciary would become a subordinate branch of government, which is contrary
to the central tenet of separation of powers. Const. art. 3, 1.
11. Courts.
The power inherent in a court by virtue of its sheer existence is broader and more fundamental than the inherent power conferred
by separation of powers. Const. art. 3, 1.
12. Constitutional Law; Statutes.
When a constitution or statute gives a general power, it also grants by implication every particular power necessary for the exercise
of that power.
Municipal courts are authorized to collect filing fees for bail bonds, under both the separation of powers doctrine and the power
inherent in a court by virtue of its sheer existence. Const. art. 3, 1.
It is fundamental to a system of government based upon separation of powers that powers separately vested in the executive,
legislative, and judicial departments be exercised without intrusion. Const. art. 3, 1.
Municipal courts, once established, are part of the constitutional judicial system of Nevada, and enjoy the inherent powers of all
constitutionally created courts, and are entitled to manage internal affairs without interference from separate governmental branches.
Const. art. 3, 1; art. 6, 1.
Municipal courts enjoy inherent judicial powers under the separation of powers doctrine. Const. art. 3, 1; art. 6, 1.
17. Courts.
The Legislature has the authority to define the jurisdiction of municipal courts. Const. art. 6, 9.
18. Courts.
In giving municipal courts general jurisdictional power over bail bonds and property bonds, the Legislature also granted by
implication every power necessary for municipal courts to exercise that power, including the power to charge and collect reasonable
filing fees. Const. art. 6, 9; NRS 4.060(1)(o), 5.050(3)(c); NRS 5.073, 266.550 (1996).
19. Courts.
When the Legislature, by statute, authorizes the exercise of an inherent judicial power, the courts may acquiesce out of comity or
courtesy. However, such statutes are merely legislative authorizations of independent rights already belonging to the judiciary.
A statute that attempts to limit or destroy an inherent judicial power is unconstitutional.
21. Courts.
The judicial function includes the right to exercise any lesser power that can be subsumed under, or is included as an integral part
of, the broader heading of Judicial Power, that is, any power or authority that is inherent or incidental to a judicial function is
properly within the realm of judicial power.
In addition to the constitutionally expressed powers and functions of each department, i.e., the legislative, the executive, and the
judicial departments, each possesses inherent and incidental powers that are properly termed ministerial and that are methods of
implementation to accomplish or put into effect the basic function of each department.
Appellate court will affirm the order of the district court if it reached the correct result, although for different reasons.
Before Rose, C. J., Shearing and Agosti, JJ.
OPINION
Blackjack Bonding and co-appellants (hereinafter collectively known as "Blackjack")
known as Blackjack) appeal from a district court order dismissing their complaint, which sought to recoup
$185,960.00 in bail bond filing fees paid between 1991 and May 12, 1997, to the Las Vegas Municipal Court.
We affirm the district court's order dismissing the complaint. The municipal court possessed the power to assess
such fees pursuant to its inherent judicial powers.
FACTS
Beginning in 1991, the Las Vegas Municipal Court started assessing a $40.00 filing fee for bail bonds. On
April 10, 1995, the Office of the Attorney General issued an opinion stating that municipal courts could not
assess property or bail bond fees because such courts were created under statutory authority; therefore, absent
statutory authorization, municipal courts lacked the authority or power to collect fees. 95-05 Op. Att'y Gen. 23,
24 (1995).
From 1991 to 1997, NRS 5.073 (now NRS 5.073(1)) read, in pertinent part:
The practice and proceedings in the municipal court must conform, as nearly as practicable, to the
practice and proceedings of justices' courts in similar cases. . . . The municipal court must be treated
and considered as a justice's court whenever the proceedings thereof are called into question.
From 1991 to 1997, NRS 266.550 (now NRS 266.550(1)) read, in pertinent part: The municipal court shall
have such powers and jurisdiction in the city as are now provided by law for justices' courts.
In response to the Attorney General's 95-05 opinion, the Nevada Legislature added section 2 to NRS
266.550, which provides: The powers of the municipal court include the power to charge and collect those
fees authorized pursuant to NRS 5.073. In addition, the Nevada Legislature added section 2 to NRS 5.073,
which provides: Each municipal judge shall charge and collect such fees prescribed in NRS 4.060 that are
within the jurisdictional limits of the municipal court. Both of these amendments became effective May 12,
1997.
1

On April 24, 1998, Blackjack filed a complaint claiming that between 1991 and May 12, 1997, the Las
Vegas Municipal Court had improperly charged fees for bail bonds because it lacked the authority to assess
fees. It also requested that the $185,960.00 collected from appellants in filing fees for bail bonds over that
period be returned. The City of Las Vegas and the Las Vegas Municipal Court filed a motion to
dismiss for failure to state a claim upon which relief may be granted,
__________

1
NRS 4.060 provides a detailed list of court fees. NRS 4.060(1)(o) provides that each justice of the peace
shall charge and collect $40.00 for each bail or property bond filed.
Municipal Court filed a motion to dismiss for failure to state a claim upon which relief may be granted, arguing
that the municipal court had the inherent power to charge and collect fees. The district court granted the City's
motion, holding that municipal courts had a specific grant of authority to collect fees prior to 1997 pursuant to
NRS 5.073 and NRS 4.060. This timely appeal followed.
DISCUSSION
[Headnote 1]
As a threshold matter, we must determine whether the district court's dismissal of Blackjack's claim should
be reviewed as an order granting an NRCP 12(b)(5) motion to dismiss or as an order granting an NRCP 12(c)
motion for summary judgment. We conclude the district court's order should be reviewed as a motion to dismiss.
Although documents outside the pleadings were presented to the district court, the district court did not rely on
these documents in its ruling.
[Headnotes 2-4]
An order granting an NRCP 12(b)(5) motion to dismiss for failure to state a claim upon which relief can be
granted faces a rigorous standard of review on appeal, as this court must construe the pleadings liberally and
accept all factual allegations in the complaint as true. See Simpson v. Mars Inc., 113 Nev. 188, 190, 929 P.2d
966, 967 (1997). Furthermore, this court must draw every fair inference in favor of the non-moving party. Id. A
complaint will not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff
could prove no set of facts which, if accepted by the trier of fact, would entitle him or her to relief. Id.
Blackjack argues that because municipal courts had no specific statutory authorization to collect fees prior
to May 12, 1997, the filing fees for bail bonds collected by the Las Vegas Municipal Court between 1991 and
May 12, 1997, were ultra vires and constituted unjust enrichment. Blackjack contends that because municipal
courts are created by statute instead of being mandated by the Nevada Constitution, municipal courts only have
powers given to them by statute. The district court dismissed Blackjack's claim, determining that there was a
specific grant of authority for Las Vegas Municipal Court to charge a filing fee for bail bonds prior to 1997
under NRS 5.073 and 4.060.
Whether municipal courts have the power to collect fees independent of specific statutory authorization is an
issue of first impression. We conclude that a municipal court possesses the authority to collect reasonable fees
pursuant to its inherent judicial powers. Blackjack's arguments that fee collection by the Las Vegas
Municipal Court was ultra vires and constituted unjust enrichment fail because
Blackjack's underlying premise that municipal courts only have powers given to them by
statute is incorrect.
Vegas Municipal Court was ultra vires and constituted unjust enrichment fail because Blackjack's underlying
premise that municipal courts only have powers given to them by statute is incorrect.
[Headnotes 5-7]
In advancing its argument, Blackjack mistakenly relies on an opinion of the Nevada Attorney General that
concluded that municipal courts are not empowered by the Nevada Constitution or statutory authority to collect
filing fees for bail or property bonds because municipal courts lack jurisdiction to collect such fees.
2
See 95-05
Op. Att'y Gen. 23, 24 (1995). Opinions of the Attorney General are not binding legal authority or precedent. See
Goldman v. Bryan, 106 Nev. 30, 42, 787 P.2d 372, 380 (1990). We reject Blackjack's argument. The Attorney
General's opinion confuses jurisdiction, which is subject to legislative control, with independent, inherent
judicial powers, which are not subject to legislative control.
[Headnotes 8-10]
Inherent judicial powers stem from two sources: the separation of powers doctrine and the power inherent in
a court by virtue of its sheer existence. See Felix F. Stumpf, Inherent Powers of the Courts: Sword and Shield of
the Judiciary 6 (The National Judicial College 1994). Under the separation of powers doctrine, each branch of
government is considered to be co-equal, with inherent powers to administer its own affairs. See State v. Dist.
Ct., 116 Nev. 953, 11 P.3d 1209 (2000) (citing Goldberg v. District Court, 93 Nev. 614, 615-17, 572 P.2d 521,
522 (1977)); see also City of No. Las Vegas v. Daines, 92 Nev. 292, 294, 550 P.2d 399, 400 (1976). Without
inherent powers to perform its duties, the judiciary would become a subordinate branch of government, which is
contrary to the central tenet of separation of powers. See William Scott Ferguson, Note, Judicial Financial
Autonomy and Inherent Power, 57 Cornell L. Rev. 975, 986 (1972).
[Headnotes 11, 12]
The power inherent in a court by virtue of its sheer existence is broader and more fundamental than the
inherent power conferred by separation of powers. See Stumpf, supra, at 8; accord Barland v. Eau Claire
County, 575 N.W.2d 691, 693 (Wis. 1998). It is impossible to give an all-inclusive enumeration of inherent
judicial powers. See Farmer v. Administrative Dir. of the Court, 11 P.3d 457, 466 {Haw. 2000) {citing
State v. Moriwake, 647 P.2d 705, 711-12 {Haw. 19S2));
__________

2
Blackjack concedes that NRS 5.050 provides municipal courts subject matter jurisdiction over bail and
property bonds, but contends that municipal courts lack jurisdiction to collect fees for these bonds.
11 P.3d 457, 466 (Haw. 2000) (citing State v. Moriwake, 647 P.2d 705, 711-12 (Haw. 1982)); accord Barland,
575 N.W.2d at 698. Nonetheless, when a constitution or statute gives a general power, it also grants by
implication every particular power necessary for the exercise of that power. See Stumpf, supra, at 8; see also
Roger A. Silver, The Inherent Power of the Florida Courts, 39 U. Miami L. Rev. 257, 289 (1985); State v.
Mitchell, 672 P.2d 1, 8 (Kan. 1983).
[Headnote 13]
We conclude that both sources of inherent judicial power authorized the municipal court's collection of fees
in the instant case.
[Headnote 14]
Ours is a government of separation of powers. See Nev. Const. art. 3, 1.
3
It is fundamental to such a
system of government that powers separately vested in the executive, legislative, and judicial departments be
exercised without intrusion. See Goldberg, 93 Nev. at 615, 572 P.2d at 522; see also Daines, 92 Nev. at 294,
550 P.2d at 400. The Nevada Constitution expressly vests judicial power in the courts:
The Judicial power of this State shall be vested in a court system, comprising a Supreme Court,
District Courts, and Justices of the Peace. The Legislature may also establish, as part of the system,
Courts for municipal purposes only in incorporated cities and towns.

Nev. Const. art. 6, 1.
[Headnotes 15, 16]
In addition to vesting judicial power in the courts, Article 6, section 1, of the Nevada Constitution
distinguishes municipal courts as being statutorily, rather than constitutionally, created. Nonetheless, this court
has declared that municipal courts, once established, are part of the constitutional judicial system of Nevada, and
enjoy the inherent powers of all constitutionally created courts, and are entitled to manage internal affairs
without interference from separate governmental branches. Nunez v. City of North Las Vegas, 116 Nev. 535,
540, 1 P.3d 959, 962 (2000); see also Daines, 92 Nev. at 294, 550 P.2d at 400; accord City of Milwaukee v.
Wroten, 466 N.W.2d 861, 867 (Wis. 1991); cf. Evan Caminker, Allocating the Judicial Power in a
"Unified Judiciary," 7S Tex. L. Rev. 1513, 1517-1S {2000)
__________

3
Nev. Const. art. 3, 1, provides:
The powers of the Government of the State of Nevada shall be divided into three separate
departments,the Legislative,the Executive and the Judicial; and no persons charged with the exercise
of powers properly belonging to one of these departments shall exercise any functions, appertaining to
either of the others, except in the cases expressly directed or permitted in this constitution.
Evan Caminker, Allocating the Judicial Power in a Unified Judiciary, 78 Tex. L. Rev. 1513, 1517-18 (2000)
(noting that because Article III of the U.S. Constitution vests judicial power in the federal courts, Congress has
control over the when and where of judicial power, i.e., the number and jurisdiction of federal courts, but not
over the who and what of judicial power, i.e., who has the power and what that power consists of). Thus, we
conclude that municipal courts in this state enjoy inherent judicial powers under the separation of powers
doctrine.
The Nevada Constitution further states:
Provision shall be made by law prescribing the powers[,] duties and responsibilities of any Municipal
Court that may be established in pursuance of Section One, of this Article; and also fixing by law the
jurisdiction of said Court so as not to conflict with that of the several courts of Record.
Nev. Const. art. 6, 9.
[Headnotes 17-22]
Article 6, section 9, gives the Legislature the authority to define the jurisdiction of municipal courts. Under
NRS 5.050(3)(c), the Legislature gave the municipal courts subject matter jurisdiction over bail and property
bonds. We conclude that in giving municipal courts general jurisdictional power over bail and property bonds,
the Legislature also granted by implication every power necessary for municipal courts to exercise that power,
including the power to charge and collect reasonable filing fees.
4
To conclude otherwise would render the
municipal courts ineffectual.
A mere naked power is useless and meaningless. The power must be exercised and it must function to be
meaningful . . . . Judicial function includes the right to exercise any lesser power that can be
subsumed under, or is included as an integral part of, the broader heading of
"Judicial Power";
__________

4
NRS 4.060, which establishes a court fee schedule, and NRS 266.550(2) and NRS 5.073(2), which authorize
municipal courts to charge and collect fees, are in addition to the courts' inherent judicial powers to charge and
collect reasonable fees. When the Legislature, by statute, authorizes the exercise of an inherent judicial power,
the courts may acquiesce out of comity or courtesy; however, such statutes are merely legislative authorizations
of independent rights already belonging to the judiciary. See State v. Dist. Ct., 116 Nev. 953, 11 P.3d 1209
(2000) (citing Goldberg v. District Court, 93 Nev. 614, 616, 572 P.2d 521, 522 (1977); see also Lindauer v.
Allen, 85 Nev. 430, 434, 456 P.2d 851, 854 (1969); accord State v. Mitchell, 672 P.2d 1, 9 (Kan. 1983); accord
Barland v. Eau Claire County, 575 N.W.2d 691, 696 n.8 (Wis. 1998). A statute that attempts to limit or destroy
an inherent judicial power is unconstitutional. See State v. Dist. Ct., 116 Nev. 953, 11 P.3d 1209 (2000) (citing
Goldberg, 93 Nev. at 616-17, 572 P.2d at 522); see also Lindauer v. Allen, 85 Nev. 430, 434, 456 P.2d 851, 854
(1969); accord Mitchell, 672 P.2d at 9; accord State v. Connery, 99 Nev. 342, 345, 661 P.2d 1298, 1300
(1983).
lesser power that can be subsumed under, or is included as an integral part of, the broader heading of
Judicial Power; that is, any power or authority that is inherent or incidental to a judicial function is
properly within the realm of judicial power. . . .
In addition to the constitutionally expressed powers and functions of each Department, (the
Legislative, the Executive, and the Judicial) each possesses inherent and incidental powers that are
properly termed ministerial. Ministerial functions are methods of implementation to accomplish or put
into effect the basic function of each Department. No Department could properly function without the
inherent ministerial functions. Without the inherent powers of ministerial functions each Department
would exist in a vacuum. It would be literally helpless.
State v. Dist. Ct., 116 Nev. 953, 962, 11 P.3d 1209, 1214 (2000) (quoting Galloway v. Truesdell, 83 Nev. 13,
20-21, 422 P.2d 237, 242-43 (1967)) (emphasis omitted).
Blackjack relies on Camacho v. Samaniego, 831 S.W.2d 804 (Tex. 1992), and Hogoboom v. Superior Court,
59 Cal. Rptr. 2d 254 (Ct. App. 1996), to argue that municipal courts may not collect fees absent statutory
authority. We disagree because both of these cases are distinguishable on the facts from the case at bar.
Camacho addresses whether a commissioner's court had the authority to impose a bail bond fee collected by
a sheriff to help defray the sheriff's administrative costs. 831 S.W.2d at 811, 815. These facts are distinguishable
from the case at bar because the fees imposed by the commissioner's court did not pertain to internal, judicial
department business. Therefore, the fees in Camacho would not fall under a court's inherent judicial powers. In
fact, inherent judicial powers are not even discussed in Camacho.
Hogoboom addresses whether the imposition of a filing fee by a local court was preempted by a schedule of
court fees promulgated by the Legislature. 59 Cal. Rptr. 2d at 265. This case offers no support to Blackjack's
argument. In discussing the history of the statutory fee schedule, the Hogoboom court acknowledged that every
court in California has the inherent power to make its own rules, provided these rules are not inconsistent with
the laws of the state or the Judicial Council. Id. at 259. It was not until 1872 that the California Legislature
prohibited courts from using their rule-making power to charge fees. Id. at 260. The legislature imposed this
restriction to make court fees uniform. Id.
We conclude that Hogoboom is distinguishable from the case at bar for two reasons: (1) the case at bar does
not involve a preemption challenge; and (2) Nevada, unlike California, has no statute that expressly forbids a
court from charging a fee.
Furthermore, we conclude that Hogoboom bolsters the City's argument that the courts have inherent powers to
charge and collect fees. Id. at 260. Hogoboom implies that prior to 1872, California courts had inherent judicial
powers to impose fees and that the judiciary acquiesced to the Legislature's determination to establish a
statewide, statutory fee schedule to promote uniformity of court fees. Id.
Hence, we conclude that Blackjack's reliance on Camacho and Hogoboom to argue that municipal courts
may not collect fees without statutory authority is misplaced.
[Headnote 23]
Finally, we note that in reaching its decision, the district court relied on specific statutory authorization rather
than on inherent judicial powers. We will affirm the order of the district court if it reached the correct result,
although for different reasons. Rosenstein v. Steele, 103 Nev. 571, 575, 747 P.2d 230, 233 (1987).
Accordingly, we affirm the district court's order granting the City's motion to dismiss Blackjack's ultra vires
and unjust enrichment claims. We conclude that Blackjack could prove no set of facts that would entitle it to
relief on these claims in light of the municipal court's inherent authority to charge and collect reasonable bail
bond fees.
CONCLUSION
We conclude that the Nevada Constitution and various provisions of Nevada statutes indicate that the
municipal courts have the inherent power to charge and collect reasonable fees. Hence, we agree that the Las
Vegas Municipal Court legitimately assessed filing fees on bail bonds, and we affirm the district court's order of
dismissal.
Rose, C. J., and Agosti, J., concur.
____________

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